frenchtoast

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About frenchtoast

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  1. Ok. I'm going to try to file a response. I just assumed because the Trial Court rule on the Motion to Correct Error only states a timeline for the initial reply, but nothing for an additional reply, that I couldn't reply, but I'll get one started. In their response, they even added a copy of the credit card agreement that I included with my MTC, so obviously they are not disputing that it's the correct agreement. And according to 34-57-2-3(a), when a party refuses to arbitration(clearly they are), the court must compel arbitration. So clearly I can't do anything until the court tells me that I can.
  2. So, I filed my Motion to Correct Error, basically citing the above referenced statute and stating that all proceedings should have been stayed until the court either denied or compelled arbitration. The plaintiff responded and stated that the case was stayed due to my MTC, and that I did not properly invoke arbitration. They stated I failed to contact an arbitration firm and that my inaction does not indefinitely stay the case. How do the courts look at this? I feel like it would have been unwise of me to start the Arbitration process without an order from the court compelling arbitration. I could have spent the $250 initial fee for arbitration, and the court then subsequently denies the motion, and I'm out of that cost. Maybe I'm wrong in this? I don't believe I can reply to their opposition of my Motion to Correct Error.
  3. After conducting some more research, I believe my best option for my next step is not filing a notice of appeal, but filing a motion to correct error with the trial court. In this motion I will cite 34-57-2-3(d) stating that upon my application for an order on arbitration, any proceedings should have been stayed. It appears this is the best practice to use before appealing, as all appellate cases I've read, the appellant has filed a motion to correct errors prior to appealing. This will also extend my deadline for appeal by another 30 days from when I file. If my motion to correct errors is denied, then I will have another final order that can be included in the appeal.
  4. I've found an Appeals case in Indiana that addresses the trial courts failure to rule on a motion. "Strutz himself is in error in raising these issues on appeal, since error can not be based on a court's failure to rule on a motion. In Re Paternity of Tompkins (1989), Ind. App., 542 N.E.2d 1009, 1012. The litigant's sole remedy is provided in Trial Rule 53.1. Misner v. Presdorf (1981), Ind. App., 421 N.E.2d 684, 687, transfer denied." Strutz v. McNagny, 558 NE 2d 1103 - Ind: Court of Appeals, 3rd Dist. 1990 https://scholar.google.com/scholar_case?case=11003109882942191969&hl=en&as_sdt=800006 So in my mind, according to this case, I cannot appeal that the court erred in not issuing an order on my MTC because I did not properly invoke the lazy judge rule. With all of this being said, does that ruin any chance I have of winning this appeal?
  5. Thank you for this! I will file my Notice of Appeal on friday. After that its a waiting game. Once the clerk of my court gets everything to the clerk of the court of appeals, I'll have 30 days to file my brief. That will be the next big step. I'll keep this updated. Thanks for your help.
  6. Would that be something I would even need to argue considering there was no 'stay of the proceedings'? In order for there to be a 'stay in the proceedings' the judge would have to order it correct? I feel like I would mostly be arguing that since I elected to arbitrate by filing my MTC, and with supporting law and case law, it would take the case out of the jurisdiction of the court. But even with all of that, I still have not been able to find anything in regards to a judge completely ignoring a motion and continuing with the case. I cannot find if I was in the wrong but not invoking the lazy judge rule, or if the judge was in the wrong because technically there should have been a stay in the proceedings as soon as I filed my MTC.
  7. Right, the notice of appeal is just information pertaining to the case and what ruling I want to be heard. I guess what I am trying to say is there was no ruling on my MTC so how can I include that? There's no order to include with it. The only thing that was ruled on was the motion for summary judgment. Whereas if my MTC would have been denied, I could include that order in my Notice of Appeal and state that is apart of what I want to be heard.
  8. I did not cite that statute in my MTC as I did not know that it existed. I did cite Federal and Indiana case law regarding the issue of arbitration, but not that specific statute. I wouldn't think that specifically not citing that statute would determine that it does not apply to my situation considering it is state law, and I applied for an order for arbitration. But it sounds like you know more than me about this. I'm simply trying to include everything I need to in my Notice of Appeal. I've found several appellate cases dealing with arbitration, but none where a judge had basically ignored a motion. And I have no found any appellate cases where a judge has ignored any motion, not just an MTC. Do I even have grounds for an appeal? According to that statute I do, however, I never invoked the lazy judge rule when I could have. My issue is, the judge basically never even acknowledged that my MTC even existed. Just proceeded like it wasn't even there. When I finish my Notice of Appeal, I'll post a redacted version and maybe someone can shed some light on if it looks good enough. I assume after I file my Notice of Appeal I'll have to draft up a brief to file with the court of appeals as well. I've found some I can use as a general guideline.
  9. Good news is, I have found some IN Court of Appeals opinions reversing denials of arbitration motions. The appeals process in IN seems straightforward, there's just a few things that get me in a bind, basically due to the fact that there was no order on my MTC. A section of the Notice to Appeal form used in IN Says to list the title of judgment/Order being appealed. I know I am appealing the granting of the summary judgment, but don't I also want to appeal the fact that there was no ruling on my MTC? Or will the Court of Appeals realize that it has not been ruled on? Would it be wise to include my MTC with my Notice of Appeal, along with the order on the summary judgment? Or will they request all of that from the trial courts?
  10. Thanks for your advice. I'm a little confused on filing my appeal. If I'm reading the rules correctly, I don't believe that I have to file a Motion to Correct Error with the trial court prior to filing my Notice of Appeal. Am I correct on that? Also, has anyone else been in this situation and had a successful appeal? I've done some searching on here but have not been able to locate anything. Thanks again.
  11. In my state, there is a "Lazy Judge" rule that basically states if a judge doesn't rule on a motion, or set it for hearing, that this rule can be invoked, and the Supreme Court of my state can appoint a special judge to hear the motion. Which basically takes it out of the jurisdiction of my court. I'm assuming that since a judgment has already been ordered, I would not be able to invoke this rule? I never invoked this, because I really didn't think it was going to be possible for the judge to just move on without having ruled on my MTC. Guess I was wrong.. I've been researching the appeals process in my State and found some forms I can use. I guess my biggest question is, what will happen when I appeal? If they don't agree with it, and overturn the judgment, will it just simply be dismissed? Or will they send it back to the trial court, so that the trial court and rule on my MTC?
  12. Update: The judge has ruled in favor for a motion for summary judgement against me, after having not ruled at all on my motion to compel arbitration. I was told I do not request a hearing, that one would be set if need be. Any advise on my next steps? Considering the judge completely ignored my motion?
  13. I've confirmed that I do not request a hearing. It should also be noted that the JDB's reply to my MTC was done so 90 days after I filed the MTC. I believe local rules state that they have 30 days. So I believe at this point my option is to file an objection to the motion for summary judgment. I'm just wondering if I should go ahead and start the JAMS process and include that paperwork in with my objection or not. Also if anyone has any rough templates for an objection to a motion for summary judgment that would be much appreciated. Thanks for any help/advice
  14. From everything I have gathered, the courts here determine whether or not a hearing is needed, and schedule one if needed. I don't believe I am supposed to request one. However I am not 100 percent certain on that. I cannot find anything in my local rules about requesting a hearing on a motion. I have read other districts rules in my state that do have information about requesting hearings on motions, but not mine. If it's safe to do so, I'll draw up a request for a hearing and file it.
  15. Hello, First of all, thank you all for the great amount of information I have been able to acquire on these forums. It's been a huge help. My situation: Last year I was sued by a firm representing Cavalry, for less than $5k. The OC Is Citi. The contract allows for arbitration with JAMS and AAA. I filed my answer as well as my MTC at the same time. I expected a hearing to be set for my MTC, however none was set. About three months after I filed my MTC, a response was filed by the Plaintiff basically stating I didn't properly invoke arbitration. There was also no ruling made on my MTC, so I did not attempt to my JAMS demand yet. So now, over a year has gone by, and the plaintiff has filed a Motion for Summary Judgement. Again, there has been no ruling on my MTC. Any advice on what I should do? Should I go ahead and start the JAMS process, and send copies of that in with a response to their Motion for Summary Judgement?