FL4answer58

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FL4answer58 last won the day on October 4 2010

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  1. I agree with Todd Henderson… based on his assessment I feel minimum wage should be set at $96.15 per hour. Maybe Mr Henderson should try and feed a family on a 'living wage' of $6.25 per hour.
  2. The fragrance always remains in the hand that gives the rose. by Heda Bejar Law school taught me one thing: how to take two situations that are exactly the same and show how they are different. by Hart Pomerantz
  3. See nascars post from today.... http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=305359
  4. Denita: Could you give more details on 'shortsale' - have a few others asking and I don't know much about it. How does this work - "get 'time' to recover your income during the sale as you still reside in the property until closing". Two of the individuals have mortgage - not upside down - equity still there. Mortgage is less then house would sell for at this time in this economy. Short sale - is equity given to homeowner after note pay off? They (each individual) have houses on market - no buyers at this time. Houses passed 3 months no payment to mortgage. Can they offer shortsale - stay in house - and pay off morgage?
  5. If this was a credit card - you may not have any Federal usery laws on time bared charges. But - Arizona may have some - check your laws and statutes. How much was the seat? 18 months may be the point by which they contacted you - not the point of default. They may have attempted to run the charge earlier - between then and your hardship - and card lapse. If this period of time meets at 12 months or less - (and may well) your most likely in default of payment - regadless of 'mistakes'. This was not an 'open' or 'revolving account' so you may fnd something on time barred debt for charge cards.
  6. Not sure ... but as I recall your Plaintiff is OC Citibank. You filed an answer - now looking at court mandatory mediation - ADR. This is not private Arbitration - JAMs or AAA. How much is the claim? What is the SOL? What is on the claim - 'Breach of Contract' and 'Account Stated'? Original creditors sometimes don't produce a written contract in 'breach of contract' debt collection cases. The consumer supposedly accepts the contract by using the card after receiving the agreement, terms and conditions. There many defenses to this claim and its sum. The 'account stated' cause of action is an old claim generally used for open commercial accounts, and one that the debt collection industry has adopted for consumer accounts. In order for an account to become stated, the creditor must provide the debtor with a statement of the account. An account does not become stated simply because the creditor demands payment of a lump sum. With court odered mediation you may not have complete due process for discovery. It will be limited discovery. If they don't have any supporting documentation (exhibits) attached to complaint - you can get it dismisses for lack of standing. Your best bet is remand back to court and/or read up on Arbitration threads to MTC Arb (with AA or JAMs) from your agreement. Why did the court force mediation - this is usually something reseved for pretrial conferance or hearing - then if the partys don't have a 'meeting of the minds' a trial date is set. Yours sounds like no court - only ADR mediation.
  7. Read the SJ Part 1 & 2 ... Although this is Arb thread it will help against the SJ. http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=304234
  8. See Arbitration Case law thread - MTC and SJ part 1 & 2. http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=304234
  9. Re: If Their attempting SJ or fighting MTC Arb Options: Argument and Opinions for consideration: [Part 2] (8) Appeal - Summary Judgment Verdict In an alternative, a party may file an appeal. Look at ‘Conley’ Pro Se filing as an example for effective process and argument(s) for an appeal: On appeal, Conley asserts that the trial court erred in granting summary judgment. See, Retail Recovery Service of NJ, Plaintiff-Appellee, v. Teresa A. Conley, Defendant-Appellant. No. 10-09-15. Court of Appeals of Ohio, Third District, Mercer County. Date of Decision: March 29, 2010. The moving party may add additional assignment of error on appeals: The ‘Conley’ appeal did not deal with Arbitration controversies. ARBITRATION; THE LOWER COURT ERRED IN DISREGARDING THE CARDHOLDER AGREEMENT OR TERMS AND CONDITIONS GOVERNING THE ALLEGED ACCOUNT. *Note: Review case law in your State or Circuit to reverse or remand argument(s) for appeal. Appeals based on filing of motions are important. IF THE MOTION IS UNTIMELY. EVEN IF GRANTED, THE ORDER WILL BE REVERSED. IF DENIED MORE THAN 20 DAYS FROM NOW, THERE WILL BE NO WAY TO APPEAL BECAUSE THAT MOTION DID NOT EXTEND YOUR TIME TO APPEAL! Pay attention to the difference between deadlines for "service" and "filing" of pleadings. Note ‘abuse of discretion’: misunderstanding the deference accorded trial court rulings and the dual standard derived from “gross abuse of descretion’. See: In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). (9) Motion to Disqualify Judge on Bias or Prejudice Motions to Disqualify Judges for Bias or Prejudice. Unless the judge is related to the Plaintiff, or is listed as a witness, the only real grounds for seeking disqualification are bias or prejudice. Before trying to disqualify any judge, read and re-read your Rules of Judicial Administration, entitled DISQUALIFICATION OF TRIAL JUDGES. Keep in mind the ’10 day rule. See, Pinnacle Ins. Co. v. Freeman, 687 So. 2d 989 (Fla. 5th DCA 1997). Note: Some judges sometimes get so annoyed with Pro Se litigants (and lawyers) that they threaten them or demean them to the point of demonstrating prejudice. See, e.g., Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991). If your MTC was denied, you may feel compelled to delicately conduct a sort of mini voir dire of the judge in such a case to ask if the judge has some axe to grind. First, stay clam and understand that the judge may not assess the truth of the allegations in your motion. See Nathanson v. Nathanson, 693 So. 2d 1061 (Fla. 4th DCA. 1997) A Judge must rule on the legal sufficiency of a motion to disqualify without passing on its truth or falsity, and without permitting a third party to offer testimony or explanations of the judge's conduct. If the judge takes issue with the content of the motion, that alone is grounds for disqualification. Leveritt & Assocs., P.A. v. Williamson, 698 So. 2d 1316 (Fla. 2d DCA 1997) Where the trial court improperly reviewed and attempted to rebut the factual allegations contained in petitioner's motion to disqualify, this established sufficient grounds for the trial's court disqualification. Kielbania v. Jasberg, 744 So. 2d 1027 (Fla. 4th DCA 1997) Judge, who interjected comments that verged on argument with counsel during a hearing. The judge, did not follow the directives of Fla. R. Jud. Admin. 2.160(f), (9) (A) “The Judge has a boss.” Review Canons of Judicial Conduct I will repost here for clarification. OP: “Judge was on the way to MSJ and deny our MTC Arb. Would not even give us a hearing. We prepared to file a complaint against judge, but opted to call the Chief Judge (designated chief administrator of County judges) and talked to his clerk. I was asked to send a Email or letter [case number] and details. The residing judge was called on the case.....a hearing was set.......MTC Arb granted in hearing but with stay”. In this case the judge 'turned' very consumer friendly after reported Canon violations of judicial conduct but pointed the finger to 'clerical' errors by staff in her office and promised an investigation. Take the emotions out of the complaint - just state the facts. You’re not suing a judge - you’re asking for a clarification and correction. Give the judge room for maneuvering - address your issues to purpose the opposition - the plaintiffs! The judge will find the necessary means. As for a grudge - from my perspective that judge may well end up our best advocate. The Law on Recusal of a Judge Federal law requires the automatic disqualification of a Federal judge under certain circumstances. In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S. , 114 S.Ct. 1147, 1162 (1994). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972). (10) Amendments to Pleadings to Defeat Summary Judgment–Never Too Late! It is never too late to amend your complaint or another pleading in order to defeat a motion for summary judgment. No case cites; I only cited FRCP Rule 1.190. [Your state may be the same). The judge may not grant it on the day of SJ hearing, but you set the motion for reverse on appeal by including; Leave to amend should be freely given when justice so requires, Fla. R. Civ. P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment." Old Republic Ins. Co. v. Wilson, 449 So. 2d 421, 422 (Fla. 3d DCA 1984)(emphasis added in language of your amendment). Check your complaint before the hearing on a Plaintiffs motion for summary judgment (even a day before), to see if there is affirmative defense you could have pled to the cause of action but did not. Did the JDB lawyer, for example, move for SJ on a Breach of Contract you could avoid by pleading ‘Failure to Pursue Alternative Dispute Resolution’ or “Failure of Condition Precedent’, in your Reply? (11) Motion for Reconsideration While the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment. Review your states RCP’s. A motion directed to a nonfinal order is actually a "motion for reconsideration" based upon this inherent and discretionary authority of the trial court; (emphasis added) on differences between reconsideration and rehearing. Be aware of the basis for reconsideration--as well as its effect on any subsequent appeal--from the case law. See, http://findarticles.com/p/articles/mi_hb6367/is_6_83/ai_n31945803/ (12) Motion to Vacate Summary Judgment A motion to vacate judgment refers to a request that is filed before the court that entered the judgment to dismiss the judgment. Law prescribes specific time line and grounds for filing such motions. There are state specific laws on the subject which vary from state to state. (12) (a)Initiate Arbitration (then Claim Damages). If you have a claim against them, i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself. Send Plaintiff CMRR letter that you have initiated. No further explanation. Request they pay as per the Arb clause - if so in language of the clause. Pay your small fee as required. Copy and 'notice' the court as required.
  10. Re: If Their attempting SJ or fighting MTC Arb Options: Argument and Opinions for consideration: [Part 1] (1) Uniform Arbitration Act Remove to Federal Court. The Uniform Arbitration Act provides that a contractual agreement to arbitration is valid, enforceable, and irrevocable. (2) Validity of Arbitration Clause While Arbitration clause interpretation and validity in the US is not a settled legal matter. However, if the arbitration clause includes a provision which states that the arbitrator "shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability", the arbitrator decides the validity of the clause. See, SCOTUS case [Rent-A-Center, West, Inc. v. Jackson]. Interpretation of evidentiary provision in arbitration agreement should have been left to arbitrator. See, Scovill v. WSYX/ABC (6th Cir 10/06/2005). http://www.lawarbitration.net/ (3) No Summary Judgment with 'Controversy' A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract agreement includes an Arbitration Clause that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court on a hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy. Also note, once it becomes a controversy of Jurisdiction, you have a stronger case for appeal. (4) Inconsistencies Exist in the Language of the Contract Once controversy exists, argue to the judge inconsistencies exist between an allegation in a pleading and an attached exhibit, such that the latter negates the former, the plain language of the attached document will control, and can be a basis for a substantive motion to dismiss. The language in attached contract agreement, permitting either party to exercise Arbitration, negates allegation in SJ complaint that one party (defendant) failed to invoke arbitration clause (or forfeited rights to Arbitration), warranting dismissal of the action. Striton Props., Inc. v. Jacksonville Beach, 533 So.2d 1174 (Fla. App. 1 Dist. 1988). (5) Use The ‘Plain Language’ of the Arbitration Clause The plain language of the Arbitration Clause in the contract agreement reads; “Starting An Arbitration: You or we can give written notice of a intention to begin arbitration of a Claim or Claims or to require arbitration of the other party’s Claim or Claims. This notice can be given by one party even if the other party has begun a lawsuit.” The plain language of the Arbitration Clause requires an SJ motion state with particularity how ‘the defendant failed to invoke arbitration clause’ and the grounds upon which it is based and the substantial matters of law. ‘The key is in the definition or interpretation of ‘language’ in the arbitration clause. The language may differ from agreement to agreement but are comparable and many times identical. (6) MTC Is Not Time Bared All that has been established is that ‘one party has begun a law suit’ and notice has been given to require Arbitration of the other partys Claim. The fact that a party participated in defensive pleadings, has no legal grounds upon which to claim defendant ‘failed to invoke Arbitration’ when no contractual SOL exists in the language of the Arb Clause. The failure to execute RCP [rules] may or may not exist for example: if the defendant does not file an answer before pretrial. The validity of the Arbitration Clause itself may be grounds to challenge (file), but the MTC is not time bared in its self. The language and definition ‘begun’ [a lawsuit], is vague and NOT a quantifiable definition as it was used in the context of the agreement. The contractual agreement did not define a SOL on ‘begin’ or ‘begun’. Pretrial conferences may be remanded to hearings when genuine issues of material fact exists, as to the terms or agreements of a contract. See, Mora v. Abraham Chevrolet (Florida Ct App 09/21/2005). (7) Pretrial Discovery Not Undisputed Material Fact or Burdensome The argument of unnecessary delay and expense is not supported by statute or an ‘undisputed material fact’. Pre-trial discovery is necessary and not a ‘burden’ or delay. Pre-trial identifies the cause of action. See, First City Developments of Florida, Inc. v. The Hallmark of Hollywood Condo. a$$'n, 545 So. 2d 502 (Fla. 4th DCA 1989). And , First Health Care Corp. v. Hamilton, 740 So. 2d 1189, 193 (Fla. 4th DCA 1999).
  11. If you intitate arbitration you set the venue - location. They must agree and/or meet you in that venue of choice. If not select a local for a vacation - I know others have - what goes in Vegas stays in Vegas. If you win you can recover costs. You can still use the SOL in Arb.
  12. Agree what 'vballchick' said - if debt is SOL they are S.O.L.! SOL will stop SJ - when you still have controversy of facts - no SJ. The big question is - did you include such an argument in you answer - you affirmative defense? If not depending on your own states RCPs - quickly amend you answer to include the required SOL argument ASAP. Otherwise...you may be S.O.L. and forced to appeal. Always include evry option you may need in your affirmative defenses - and add any others as amendment - once you deem it necessary. Its best to cover everything then not have enough - for this reason.
  13. You will find some NAF and AAA cases on discussion boards indicating they have taken consumer intitiated FDCPA violation cases - not commercial / consumer debt lawsuite cases. I have researched these claims myself - and have documented 4 cases.