pac58

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Everything posted by pac58

  1. We were able to come to a settlement with a payment plan that I can afford. Having the judge there at the PTC helped because I was unable to get them to work with me on my own. I am ok with settling and did not push the MTC because the terms were what I wanted, to begin with.
  2. I only just found this comparable case, does it add anything to my plans/oral arguments or is it saying the same things? IE will it help to convince the judge that my MTC needs to be approved? http://www.leagle.com/decision/In FDCO 20131122892/KRAUSE v. BARCLAYS BANK DELAWARE#
  3. Thank you for the quick response, this really helps put me into the right mindset.
  4. @Harry Seaward On Friday I received a package in the mail from Bursey. It is a disclosure statement with: a factual basis of claim, legal theory, a trial witness, damages, and trial exhibits. 1) factual basis of claim: "Defendant entered into an agreement with plaintiff's predecessor in interest, barclay's bank delaware barclaycard with itunes reward, on July 8, 2009. Said account was acquired by plaintiff. Subsequently, defentant(s) defaulted on their account. The present amount owed under the terms, after all setoffs, is $3,560.84. Plaintiff is the owner of that credit account. " ---My first question is to ask why they make it sound like I defaulted after they acquired the account. They bought the debt on August 28, 2015. is this some sort of perjury, alluding to a default after they took ownership when their own records show they purchased the debt 3 years after default? 2) Legal Theory: "The acts and omissions of Defendant(s) constitute a breach of contract. Plaintiff has been damaged thereby. Plaintiff's cause of action arises out of contract." ---This is probably naive, but, does midland get to claim that I had a contract with them just because they bought the debt? IE they are not the original owner. 3) trial witness: (a) custodian of records, emily walker, mycah struck, paula fruth, josh knebel, or jennifer niro, c/o bursey & associates, address, etc.; (b) they lsited me as a trial witness ---My question is who are these people listed in (a) and what is it they are giving testimony of? Shouldn't I be given some indication? 4) Trial exhibits: "(1) cardmember agreement, (2) affidavit of bryan jones, dated 5/23/17, with attachments: bill f sale; barclay's bank statements. --the cardmember agreement attached is the Juniper agreement. they shrunk it down to the point that is is illegible, except for the title of the agreement. It is literally illegible. --also attached is the affidavit of bryan jones, who makes the following points: 1) he is employed as a legal specialist with access to midland files. he is competent, over 18, etc. 2) midland keeps great records, etc. 3) defendant owes a balance 4) date account opened, date of last payment, date of account being charged off 5) attached is a bill of sale between barclays and midland and also copies of all billing statements ----Nowhere in here does he reference the name of the cardmember agreement, he just says "Barclay's Bank Delaware" ---none of the billing statements attached have the word juniper on them, anywhere. Overall, I need to know if this stuff is related to the pre-trial conference, which is also my oral arguements for motion tocompel, or if this is for the actual trial (if MTC is denied and appeal is denied). Do I need to respond to this disclosure statement? If so, are my concerns valid IE the juniper agreement isn't applicable, etc. My PTC/oral arguments for MTC date is tomorrow, Monday the 12th at 4pm. I plan to state: "Plaintiff has not shown where the "juniper" agreement came from." "I deny that I owe anything and I deny that plaintiff has standing to sue on this alleged debt." "I object to this court's jurisdiction as there is a private arbitration clause and I have a pending motion before this court regarding the improper jurisdiction" "Plaintiff is attempting to lump a group of courts together and claim they are all "small claims""
  5. Just to update: Our original pre-trial conference was today however because of my MTC it was moved back by 10 days. Plaintiff did not file a motion; the reason it looks like they did is that their opposition to my MTC was filed/labeled as a motion. Oral arguments and pre-trial conference are both set for June 12th at 4 pm. If the judge denies my MTC should I come prepared with a motion to stay a court date so that I can appeal? Do I need to have an appeal ready to submit right then?
  6. @Harry Seaward Got a letter from the court in the mail today: Notice: oral argument on motion to compel arbitration (Date/time.) "This matter will not be continued unless a motion to continue or stipulation to continue is filed with the court, based upon good cause, and granted by the court prior to the hearing date." Does this just mean that it won't be pushed back on the calendar unless a motion to continue is filed/approved before the set date? BTW I still have not received anything about Plaintiff's motion.
  7. When submitting my response at the court the clerk informed me that a date was already set and that Plaintiff had filed their own motion. The clerk wouldn't tell me what that motion is and said that it would come in the mail. I submitted my response to Plaintiff's opposition to my MTC and got it on the record, however, I'm frustrated that Plaintiff's opposition to my MTC took so long to reach me, effectively disabling me from making the most effective response possible. I looked my case up online but I don't see the second motion anywhere.
  8. I updated my response to include the fact that I got their response in the mail on May 17th. They dated their response May 11th and I just wanted to be sure that there won't be controversy over my responding more than 5 days later.
  9. Thank you, I will submit my response ASAP. I'll keep the rest in mind for court, if my MTC is denied, so that I can hit it harder. I assume that if my MTC is approved I won't go to court at all? Plaintiff will just ask me to drop the arbitration if they drop the suit?
  10. @Harry Seaward In Coconino County, we have small claims court and we have civil court that both fall under the greater "Justice Court." The difference is that small claims allow for a maximum of $3,500 whereas civil allows for a maximum of $10,000. Plaintiff is using the language from the contract of "small claims" as the common denominator between Delaware and Arizona. I'm being sued in Civil court, but they are using the "small claims" rules of the contract to keep this from going to arbitration. Something about this bothers me. I need to go have lunch and get away for a bit, I got ahead of myself. Small claims and civil both fall under civil court. http://www.coconino.az.gov/510/Flagstaff-Justice-Court
  11. I have been reading "small claims" items online because of the language in the contract but I'm being sued in civil court which has different rules.
  12. @Harry Seaward Attached is my full response to Plaintiff's opposition of MTC. Formal Response without identifiers.pdf
  13. I found a typo in the Plaintiff's response. At the end of their response, they state "Plaintiff requests that the Court deny Defendant's motion to dismiss" (emphasis mine).
  14. I see your point. Just FYI, they filed in Coconino County. Our website is where I'm pulling "small claims" numbers.
  15. Is that my argument right there? "The Delaware JP Court is not equivalent to the Arizona Justice Court in that the Delaware JPC handles "small claims" not to exceed $15,000 whereas the Arizona JC "small claims" rules state that the amount must not exceed $3,500. Being that the Plaintiff is suing for more than the Arizona Justice Court allows and that this amount is allowed in the Delaware Justice of the Peace Court, it is shown that the two courts are not the same and Plaintiff's argument becomes invalidated."1
  16. I'm reading the rules that govern the Delaware JP court and, in the final paragraph on the first page, it says they handle $15,000 and below. Our Justice Court handles $3,500 and below. Is that a significant difference? Delaware JP Court: http://courts.delaware.gov/forms/download.aspx?id=39328 AZ Justice Court: http://www.coconino.az.gov/1275/Small-Claims Further, the amount that Plaintiff wants from me is $3,560.84 but the AZ justice court "small claims" rules say that it handles $3,500 and below. My amount is higher and, were Plaintiff to win in court, that amount would be even higher. AZ Justice Court: http://www.coconino.az.gov/1275/Small-Claims
  17. @Harry Seaward I responded to your advice just a moment ago (above) with a specific question. This post has my full response, sans the specific portion above: Defendant's Response To put it plainly, the 2008 agreement used by the Plaintiff is not applicable. December 2012 was the date of the last payment thus the 2012 agreement, included with Defendant’s original Motion To Compel, went into effect before the account was closed and is the correct agreement. Also, Plaintiff's agreement is for a Juniper account, however, there has been no prior allegations of the underlying account having been associated with Juniper. Furthermore, Plaintiff makes no accounting whatsoever for its possession of this agreement. They don't claim to know where it came from or even allege that it's the correct one for this account or in effect during the life of the account. There's certainly no sworn testimony introducing the agreement. Additionally, the Juniper agreement is dated as from 2008, a year before the account was opened, yet Plaintiff makes no attempt to reconcile this discrepancy. In contrast, Defendant has introduced the 2012 agreement with sworn testimony as having been the correct agreement for the account and having been in effect during the life of the account. Using Barclay’s own words, the 2012 agreement states that "this document is our standard form credit card agreement in effect on the last business day of the previous calendar quarter that ended on 12-31-2012". In response to the cases cited by Plaintiff: the two cases cited by Plaintiff have nothing to do with contractually agreed upon arbitration; AZ and the federal courts have very strongly favored arbitration when there exists between the parties an agreement. Clarke v. ASARCO Inc., 123 Ariz. 587, 589, 601 P.2d 587, 589 (1979). Arbitration is a favored method for resolving disputes where a matter is subject to arbitration. As our Court of Appeals stated: Therefore, in order to accomplish this purpose, arbitration clause should be construed liberally and any doubts as to whether or not the matter in question is subject to arbitration should be resolved in favor of arbitration. Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382 (2nd Cir. 1961); United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed.2d 1409 (1960); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2nd Cir. 1959); Lundell v. Massey-Ferguson Services N.V., 277 F. Supp. 940 (N.D. Iowa 1967); Southern Bell Telephone & Telegraph Co. v. Louisiana Power and Light Co., 221 F. Supp. 364 (D.La.1963); Firestone Tire & Rubber Co. v. United Rubber Workers of America, Local Union No. 100, AFL-CIO, 168 Cal.App.2d 444, 335 P.2d 990 (1959); Bewick v. Mecham, 26 Cal.2d 92, 156 P.2d 757 (1945). With regard to Plaintiff’s argument that arbitration is an economic waste: no Court of Record in AZ has ever found that "economic waste" is a valid reason for denying a Motion to Compel private contractual arbitration. If arbitration is an economic waste for the Plaintiff then going to court is an economic waste for the Defendant; the cost of an attorney and fees to defend oneself in court become instantly uneconomic. Put "small claims" argument here.
  18. We assume that Bursey filed with the court, but my copy of his response isn't stamped by the court. At this point, I should be preparing my own response? If so, does my response need to include things like: 1) The 2008 agreement used by the Plaintiff is not applicable. If Dec. 2012 was the last payment, then the 2012 agreement (Exhibit in MTC) went into effect before the account was closed and is the correct agreement. 2) The two cases cited have nothing to do with contractually agreed upon arbitration; AZ and the federal courts have very strongly favored arbitration when there exists between the parties an agreement. 3) No copy of the original agreement with signature. 4)If arbitration is an economic waste for the Plaintiff then going to court is an economic waste for the Defendant; the cost of an attorney and fees to defend oneself in court become instantly uneconomic. The Plaintiff does not wish to settle so I am requesting arbitration, an option afforded me by the agreement.
  19. Ok, i remember now the clerk saying something like that. Apologies. I still want to go check because it's gnawing at me.
  20. After reading other similar threads, I believe that my MTC was not filed separately. The clerk said it didn't need to be and that it could all go in together. I was relieved at not needing to pay another fee and didn't think that my MTC would get buried. I will go to the courthouse ASAP to file it separately, should I add anything to it now that I know a little bit more? The copy of the response letter by Bursey is not dated by the court, only by Bursey's office. My copy of the MTC is court dated May 4th, but if my original MTC wasn't actually filed then it doesn't matter if Bursey responded within 10 days or not. Now that Bursey is suddenly using a juniper agreement, with no previous mention of it anywhere, and because there is no copy of my signed agreement either, should I consider a motion to dismiss?
  21. I do not believe it was a juniper card, I'm not sure how to find out though. 12/08 appears on the table of contents, see attached image.
  22. There is no official date posted, but the date of "12/08" is all over this agreement. I opened the card in 2009 and am using the 2012 version of the agreement. Does an agreement from 2008, one year before I got a card, apply to me?