DowhatIcan

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Everything posted by DowhatIcan

  1. I finally have a day off to work on filing for dismissal/sanctions. I've researched case law and am coming up empty regarding sanctions for not following a court order. Could someone help with this? I did see that it appears sanctions would be related to discovery, is this correct? Thank you in advance and I know this needs to be done ASAP, but have been working A LOT recently.
  2. So as I get ready to file the opposition to the motion I receive in the mail that the court denied their motion stating the contract does not provide for the relief their seeking and it’s not in the courts ability to rewrite the provision to favor one side or the other.
  3. So your last paragraph says to request sanctions and dismissal. I was unaware that I could request this as part of a response. As far as my costs, do I need to submit a statement of costs with the reply?
  4. I never filed the original reply to their opposition to MTC as when I went in to file the response the clerk told me that the judge had already granted the MTC. The verbiage in the motion for reconsideration is exactly as it was when they submitted it originally. They filed it after the judge had already approved the order. After receiving their opposition the court sent a nature of proceedings that stated the court already approved the order and still does so. Plaintiff created the contract and the court is give common meaning to the terms outlined in the contract. The contract does no provide for the relief expected of the Plaintiffs. Their motion starts with: "You have a right to file a written response to this motion within ten (10) days from the date this motion was served. Your response must be filed with the court, and copies of your response must be served on the other parties as provided by Rule 120 of the Justice Court Rules of Civil Procedure. The court may treat your failure to respond to the motion as your consent that the motion be granted." Plaintiff, through undersigned counsel, respectfully requests this Court to reconsider its order granting Defendant's Motion to Compel Individual Arbitration. This motion is supported by the record and the attached memorandum of points and authorities, incorporated herein. Memorandum of Points and Authorities: Plaintiff requests the Court to reconsider its order granting Defendant's motion to compel arbitration. Plaintiff did file an opposition to Defendants motion on or about XXXXX. The court attempts to enforce a contract according to the parties' intent and applies a standard of reasonableness to the contract language. State ex rel Goddard v. R.J. Reynolds Tobacco Company, 206 Ariz. 117,75 P. 3d 1075 (App. 2003). The actual purpose of arbitration would be undercut where a party is permitted to claim a right to private arbitration when the costs of arbitration grossly exceed the amount of pursuing the matter in justice court. The Court of Appeals has considered the concept of economic waste as it relates to judicial proceedings. In Cordova v. City of Tucson, 489 P.2d 727, 15 Ariz.App. 469 (Ariz. App., 1971), the Defendants appealed the Court's Order granting the Plaintiff City of Tucson's right to condemn property, and order that the only issue left to be tried is the amount of just compensation to be paid to Defendants. The Court of Appeals dismissed the appeal as premature, finding that the subject order was not a final judgment because there can be no judgment of condemnation until damages have been assessed. However, the Court of Appeals did note that judicial relief may be available at this stage of the proceedings to avoid economic waste. (Although no rights of appeal exist, judicial intervention by way of special action may be available to avoid the serious economic waste which would result from a long drawn-out trial when the condemning authority has no right to condemn the land in question.) Cordova v. City of Tucson, 489 P.2d 727, 729, 15 Ariz.App. 469 (Ariz. App., 1971) WHEREFORE Plaintiff requests te Motion to Compel Arbitration be DENIED. Dated: XXXXXXXX
  5. So they filed a motion for reconsideration of the MTC. I plan on responding to this with my previous response to their initial response to the motion.
  6. https://www.creditinfocenter.com/community/topic/329278-not-a-lawyer-not-a-loser/
  7. No, other than this arbitration clause is different than the other. I will put together a MTC for this one as well. Did you have a chance to see the update for the other one I posted?
  8. It’s also worth mentioning that the agreement in their disclosure was from 12/14 which was after account was opened.
  9. 1. Who is the named plaintiff in the suit? Midland Funding LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Bursey & Associates 3. How much are you being sued for? $2000 4. Who is the original creditor? (if not the Plaintiff) Comenity Bank Victoria's Secret 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door) In person 7. Was the service legal as required by your state? Yes Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Arizona 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Within SOL 11. When did you open the account (looking to establish what card agreement may be applicable)? June 2014 12. What is the SOL on the debt? To find out: 6 years Statute of Limitations on Debts 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Served 9/5, answered 9/22, Mediation set for 12/20 on 10/6, App for entry of default 10/10, Motion for Summary Judgment 11/27, Disclosure filed 11/27, Motion to continue mediation 12/6, granted - mediation set for 6/20 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No 16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Have until 12/27 to respond to MSJ. Complaint was breach of contract. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing sent with complaint. MSJ had statement of facts, affidavit, bill of sale, field data electronic file, statements, statement of costs. (No agreement) Disclosure contains same documents with the agreement as well.
  10. So it's been over 30 days and as I presumed Midland didn't commence arbitration as was ordered by the judge with the MTC. (Plaintiff to commence arbitration proceedings with 30 days of the court granting the motion) The case is stayed for another 60 days, but I believe I would file a Motion to Dismiss with Prejudice at this point, correct? Is there any special verbiage I should be adding to the motion other than Plaintiff not commencing arbitration as was ordered? Thanks!!
  11. Thank you Harry!!! Can't express enough my gratitude to you & all the others in this forum.
  12. Ok. Thank you!!! What would the 1099 be for? If I wanted my court costs?
  13. So what is common in these scenarios from what you generally see? I'm thinking dismiss with prejudice. What other items should I be considering?
  14. So I go to the courthouse to file the response to the opposition to MTC and the clerk comes back and says the judge just ruled on this today and you should receive the ruling in the mail in a few days. She shows me the ruling and...........he granted the MTC. He ordered to stay proceedings pending completion of arbitration for 90 days and ordered the plaintiff to commence arbitration within 30 days. So we shall see what comes of this now.
  15. Thank you so much for your assistance Harry!!! I have made the recommended suggestions and am on the way to file the response with the court shortly. I will update with what happens. Thank you again!!!!!
  16. Well, I did include the 12-1502 verbiage in the MTC originally and put it in my reply as well. I would like for some of you to review the reply to their opposition to the MTC at your convenience. Thank you so much!!! MTC Opp Resp review.docx Order MTC review.docx
  17. Okay, just received Midland's opposition to compel private arbitration. So now I understand that I respond with my response to this. Which will primarily rely on 12-1501 & 12-1502 and some case law correct?
  18. Sounds great! First 2 pieces done and sent off now to work on the OMSJ.
  19. I have the letter and MTC Arbitration ready to send and file. Could you steer me in the direction for verbiage on the OSMJ with MTC? I thought I saw one in a thread, but can't seem to find it again. Thanks again Harry! You really are a great help to so many people in here!!!!
  20. Okay I will send a letter out today and file the MTC arbitration as well. i need an affidavit included in the MTC regarding the agreement correct?
  21. @Harry Seaward Should I file MTC Arbitration & Opposition to MSJ at the same time?
  22. Just so I have this straight: 1 - File opposition to MSJ 2 - Send letter to Midland stating arbitration 3 - File MTC What kind of timeframe should I be looking at completing the aforementioned actions 2 & 3? Thank you so much!!!!
  23. Okay. WOW, this is quite the undertaking for research and compiling information. Especially when there is so much to compile. So including an affidavit with my objection would be the proposed method as I never had an account with Midland Funding. Were you able to review my previously attached opposition? I am including what I have so far for the MTC and Proposed Order as well. Proposed Order MTC.docx MTC Review.docx
  24. I don't have much time, but am working on a letter and MTC. Currently reviewing other threads posted in here for help with that. I will update as necessary for assistance. Thank you
  25. I have no legal background or education other than what I have done to research my case as it has progressed to this point. A lot of time in this forum. Recent Motion for Summary Judgment filed against me from Midland Funding in Arizona. I would like to submit my proposed opposition to the MSJ for some of you to review at your convenience. Thank you in advance. OSMJ Review.docx