Credator

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Credator last won the day on March 3 2014

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About Credator

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    Reality is an Illusion

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  1. ** Update to Howell ** IT IS ORDERED dismissing this case without prejudice for lack of prosecution. Party Name Relationship Sex Attorney Midland Funding L L C Plaintiff Patricio Esquivel Lisa Howell Defendant Female Pro Per Filing Date Description Docket Date Filing Party 1/9/2015 042 - ME: Case Dismissed - Full 1/9/2015 http://www.superiorcourt.maricopa.gov/docket/CivilCourtCases/
  2. @nobk4me I like the 4 digit check (not including the decimal point ) that I cashed by using arbitration as leverage. As I believe I have previously made clear, arbitration can be a good tool, in the right circumstances. No evidence exists that my realistic view of arbitration based on actual experiences and significant review of the case law surrounding arbitration somehow supports the contention that I "don't like arb". As a tool used by a competent and knowledgeable party and in the right circumstance it can be "likable". Finding a case cite other than the NAF one might be helpful, if such exists. As I stated "I am unable to find any vacated arbitration awards for OC or JDB debt collection disputes in the AZ CoA" Some times the missing data speaks clearly and loudly. The questions is whether we choose to ignore it or try to understand whether it is telling us something significant that we can use to our benefit or to stay out of trouble. I have posted plenty of facts and data that people are free to rebut with their own cites from the law or arbitration procedures. It may assist others, with an interest in arbitration, if one can rebut the arbitration rules and other items I have cited rather than to make unsupported claims that I somehow "don't like arb." To me, contractual arbitration is merely another tool on my belt. To some it appear to be the grail. I just don't get that magical quality in my experiences and cannot put my finger on any hard data that would confirm such a reliance is warranted in a collection dispute that goes to a final hearing and award. I believe it ill advised to go into arbitration based on the allegation that I "don't like it" or someone else does "like it". I would want to do the heavy lifting and actually figure out what works best for my specific situation. I don't purport to know the answer for anyone but myself and am distrustful of anyone suggesting they know the answer on whether or not I should use consumer arbitration in a collection dispute. Best of success to the OP.
  3. From my posting I welcome rebuttal based on facts or experience. Unfortunately, our experiences are typically going to be very limited. Even if we had 9 trips to arbitration it "feels" like that the landscape has changed a lot in 5 years so the older experiences may not be as useful in predicting the current state of consumer collection dispute arbitration. I am not tasked with defending or crushing the viability of consumer contractual arbitration. I do not have a dog in the fight. It may be the right tool for the right circumstances. When someone suggests the arbitration tool can do a certain thing because a handful of people in other jurisdictions prevailed that way I would be very cautious in relying on that as my winning ace card. Still, I would hold out my verdict until I had read and understood the applicable agreement, all the applicable arbitration rules, the FAA, my state's arbitration statutes, the controlling case law in my state regarding contractual arbitration and arbitration awards (confirm, vacate, and remand), forum discussions applicable to the appropriate use of contractual arbitration. AFAIK no one has produced any statistics or evidence that indicates that the highest and best use of consumer arbitration is something other than to cause the party that is pursuing or threatening to pursue an alleged debt through a lawsuit to drop the pursuit. The resulting favorable settlement or abandonment appears to be due to the expense and risks involved in contractual arbitration. If I was unaware that there is nothing to prevent hearsay from being weighed by the arbitrator, I would not be satisfied that my knowledge was sufficient to make a proper decision on whether or not arbitration is the best approach for my particular situation. I would want to do a lot more study on the tool of arbitration. Arbitration is merely a tool, just like negotiation and litigation. I have used all three tools is moving a dispute forward. Mostly I use a combination of 1 or 2 tools. Availability and the extend of discovery allowed in arbitration is another area of knowledge I would want to have for my applicable forum before proceeding in arbitration. I find arbitration to be just as involved and difficult as litigation but with much less control and predictability. I find successful negotiation the opposite of trivial. Some seem to be searching for a shortcut. I know of know shortcuts in a collection dispute and would want to avoid the snake oil salesman purporting to have found that shortcut. In my experience the most predictable route to prevail in a collection defense, other that writing a check and making it go away, is doing the hard work to litigate in an appealable forum while making a proper appeal record. Along the way I am constantly looking for any leverage I can use. When opposing perceives that I have sufficient leverage they *may* come to the table with an acceptable or negotiable settlement offer or they could tie up the court for 2 years until they lose. But, some might say, I don't want to work that hard for only $1,000. If similarly situated, I would consider paying what the opposing party demands, assuming that attempts to negotiate a reduction, based on leverage were to fail. It is not rocket science. But from my experience it is intelligent hard work to prevail. Oh, and if consumer arbitration appears to be a farce it would likely be due to attempting to use the tool improperly. I would not expect a hammer to cut a 2x4 very efficiently. I would think that a consumer that wishes to take a collection dispute to a final hearing and arbitration award would very likely be using the tool of arbitration improperly. Opinions may vary.
  4. Thanks for the feedback. I'll try to work on that. Perhaps my post at #14 is more readable. Best of luck.
  5. The arbitrator has broad latitude to do as they please in "interpreting" the law. They have broad latitude in "interpreting" the contract. I have no reason to believe that latitude would routinely favor an alleged debtor in arbitration. Of course if I found myself in arbitration I would argue my understanding of the applicable law, contract interpretation, applicable SOL, etc. very vigorously. I don't believe that the plaintiff is fighting having an arbitrator enforce their self-drafted agreement over the law. The determination of the arbitrator on choice of law is not guaranteed. It could go either way IMHO. They wrote the contract and likely don't find its terms too onerous. I believe it is more likely the costs. They typically wanted the substantial benefits of class action waiver provided in a contract of adhesion that contained arbitration and class waiver but when an individual is threatening to avail themselves of that arbitration clause they conveniently argue that they should not have to comply with their arbitration clause and attendant costs. They are trying to have their cake and eat it too. Now, those JDBs never drafted those arbitration clauses and would probably prefer a familiar low cost lawsuit to collect from the recalcitrant alleged debtors. The court records show a lot of reversals of court's erroneous decisions. The most likely place to reverse an erroneous ruling by an arbitrator on an award is likely to be in the very court that the alleged debtor was presumably trying to avoid. Judicial review of arbitration awards is usually extremely limited from what I read. The rules of evidence are not required to be used by the arbitrator. I am not comfortable with that and much prefer court if there is to be an actual fight until a final adjudication. Before participating in arbitration it would probably be a good idea to be thoroughly familiar with the applicable rules. I have not seen anything in the rules for JAMS or AAA that would permit me to keep hearsay evidence from being presented to, reviewed by, and factored into the arbitrator's decision on an award in a collection dispute. Perhaps someone can point that rule out and post a link to it on the forum. http://www.jamsadr.com/rules-streamlined-arbitration/ Rule 17. The Arbitration Hearing (d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product. http://www.jamsadr.com/rules-comprehensive-arbitration/ Rule 22. The Arbitration Hearing (d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130 R-34. Evidence ... Conformity to legal rules of evidence shall not be necessary. Arbitration does not rely on precedent or stare decisis. Every case is a brand new case in front of an arbitrator. Sometimes the arbitration agreement itself even addresses the issue: http://www.syncano.com/terms/ 9.3.5 AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF. I read that to mean: 1. if the exact same dispute occurs; 2.) between the same parties; and 3.) I had prevailed with a favorable arbitration award & confirmed judgment in the first dispute I would not have any expectation that I would automatically prevail in dispute #2 and I cannot use the previous arbitrators award or the court's confirming judgment to assist in proving my case.
  6. My #16 post presented numbers and facts about MI courts that will appear to remain unchallenged. They appear to be reliable facts to me but others are free to take issue and introduce their contradictory facts. I did take 43 word out of my 542 word post to simply state what should be fairly obvious to anyone that happened to be famiiar with both AZ and MI courts. "The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier." I fail to see any significant controversy in such a simple and high level jurisdictional comparison unless one is somehow sensitive enough to actually be offended at even a tangential jurisdictional scope comparison of the purported rule-adhering MI courts to those scummy rule-violating AZ courts. It is doubtful anyone could read into my mere two sentences that AZ law and rules are the same as MI. I suppose anything is possible even if not plausible. Before I would be comfortable suggesting that the MI District Court is where "the Judge will adhere to all the rules" I would want to review the record of the District Court judges on appeal. The MI Circuit Court that reviews the MI District Court judges decisions for errors made over 3500 reversed and remanded errors. Whether this number is excessive or fairly good compared to other jurisdictions does not matter IMHO. What matters is if I am one of the 3500+ that appealed or one or the unknown litigants that never appealed and my trial judge made a reversible error. Perhaps MI is really different from other states and the lower court judges routinely outshine their appellate judges in making less reversible errors in their decisions based on their better adherence to the rules. I am a bit skeptical and will await supporting facts should they exist. Since I will routinely make a proper trial court record for appeal, I suppose I don't need to concern myself with whether a judge adheres to the rules (like MI District Court is purported to) or does not adhere to the rules/ law (like I have experienced in AZ). I just document it for the next judge to reverse. Others are free to rely on a unsupported claim, "that in District Court and the Judge will adhere to all the rules". The numbers show that It does not work that way in the MI Circuit Court that does the appellate review for the MI District Court.
  7. @Clydesmom http://www.jameseduc...ions-checklist/ 9. Counsel is testifying. “OBJECTION: Your Honor, counsel is trying to testify himself, instead of having the witness do it.” DISCUSSION: The objection that “Counsel is testifying” is heard so often, that we include it in this list of “the basic two dozen.” However, the objection usually could just as well be phrased as “leading” or “argumentative” or “assumes facts not in evidence.” The objection is to parts of the question which contain facts or opinions not in evidence. The MI District Court has limited jurisdiction compared to the Circuit Court in MI. The MI Circuit Court seem more on par with the jurisdiction of an AZ Superior Court. In my experience the AZ Superior Court judges do not "adhere to all the rules". If they did my litigation wins would be much quicker and easier. An appeal of a reversible error made by a MI District Court judge would be made to the MI Circuit Court. I may be wrong, but I doubt the decisions of the MI Circuit Court have any significance as precedent setting or citable law. The need for appellate review would diminish in MI (and elsewhere) *if* we could rely on the "Judge will adhere to all the rules". In google's scholar there are currently 3,510 hits in MI for the phrase "reverse and remand". These cases are likely being remanded back to the Circuit Court and not the District Court. If the circuit court judge's cannot adhere to all the rules and have to often be reversed on appellate review, I am not sure how one could make the assumption that judges in the district court beneath them are somehow better qualified to adhere to the rules. This trial judge did not seem to adhere to the "rule" requiring a jury trial: Benjamin v. SAVIN LAKE SERVICE, INC., No. 304246 (Mich. Ct. App. June 12, 2012). We find that the trial court erred in concluding that Benjamin was not entitled to a jury trial for his wrongful termination claim. Applying the rule above, Benjamin had a right to a jury trial on his wrongful termination claim,[7] which he appropriately invoked by filing a timely demand. ... Reversed and remanded for proceedings consistent with this opinion. -- Whether or not I have representation, when it has my name on the caption, I assume it is my case to win or lose. I will not rely on the judge to do his/her job properly for my ability to "win". It is a risk in litigation that I refuse to take and it is why I believe that if I don't plan to appeal I plan to lose. I suppose others are free to choose to rely on their judge "adhering to all the rules". When opposing counsel does testify (they cannot help themselves), I would immediately object on and for the record if the judge doesn't shut them down mid-sentence. It is not a trivial job that the OP has engineered for themselves IMHO. If an issue matters to me, I would always give it my best. If the opposing party fails to be granted their MSD and a proper trial brief is timely filed it *may* cause the opposing party to become interested in settling FAIK.
  8. I have not seen much of an indication of "pro-creditor" rules of evidence in "many states". I would be interested in the specifics for MI of the "pro-creditor" rules of evidence. Regardless, it is critical to be an expert on one's rules of evidence and even more important to know how the law interprets them. It is critical to know ones civil rules of procedure very well. It is critical to comply with deadlines and force one's opponent to comply with their deadlines. I would want to make sure there is a proper record of the MSD hearing and the trial to permit a successful appeal to reverse any errors or abuse of discretion made by the judge that resulted in an adverse to me decision. A plaintiff bringing a cause of action must be properly challenged on and for the record if they fail to prove up by admissible evidence any of the required elements of their cause of action. MI breach of contract required elements: The elements of a breach of contract action are (1) the existence of a contract between the parties, (2) the terms of the contract require performance of a certain action by the defendant, (3) the defendant breached its obligation to perform, and (4) the plaintiff incurred damages as a result of the breach. Synthes Spine Co, LP v Calvert, 270 F Supp 2d 939, 942 (ED Mich, 2003). The essential elements required in MI to prove up a contract by admissible evidence: The essential elements of a valid contract are: (1) parties competent to contract; (2) a proper subject matter; (3) legal consideration; (4) mutuality of agreement; and (5) mutuality of obligation. Hess v. Cannon Township, 265 Mich.App. 582, 592, 696 N.W.2d 742 (Mich.App.2005). If I show on and for the trial court record that a plaintiff that brings a cause of action for a breach of contract fails to provide admissible evidence for even one of the 9 elements required for BoC & contract, the plaintiff should fail in their cause of action. Either at the trial level or upon my timely and proper appeal. Not a CC agreement but this shows some of the case law in MI relative to signatures: Ehresman v. Bultynck & Co, 511 N.W.2d 724, 203 Mich. App. 350 (Ct. App. 1994).Furthermore, we approve of the following principles set forth in 17 CJS, Contracts, § 62, pp 731-733: ignature is not always essential to the binding force of an agreement, and whether a writing constitutes a binding contract even though it is not signed or whether the signing of the instrument is a condition precedent to its becoming a binding contract usually depends on the intentions of the parties. The object of a signature is to show mutuality or assent, but these facts may be shown in other ways.... In the absence of a statute or arbitrary rule to the contrary, an agreement need not be signed, provided it is accepted and acted on, or is delivered and acted on. Plaintiff does not deny that he accepted the delivery of the agreements and operated under their terms by, for example, enjoying a leased automobile, an American Express credit card, reimbursement for expenses, and payment of compensation. ... Affirmed. --- The "Plaintiff does not deny..." and similar comments by the courts, in their decisions. light the path and shows the outcome *may* have been different if the party alleged or affirmed differently than the record shows. IMHO An unpublished MI case with a different outcome: AUBURN FINANCIAL CENTER v. Adams, No. 285002 (Mich. Ct. App. June 2, 2009). Based on the present record, we conclude that there was insufficient evidence of mutual assent to bind plaintiffs to the arbitration provision of the proposed operating agreement. ... We reverse the trial court's grant of summary disposition for defendant and remand for further proceedings. We do not retain jurisdiction. As the prevailing party, plaintiff may tax costs. Another unpublished decision providing good insight as to how the courts are likely to interpret things: In response to Citibank's motion, Muldrow argued that Citibank's documents were unsigned and unsupported and, therefore, could not be used to support its motion. She also argued that the affidavit was invalid, that Citibank lacked standing to sue because it was not registered to do business in Michigan, had unclean hands, and violated federal law in seeking to collect the debt. ... Further, the records plainly established that Muldrow applied for a credit card, which application was approved, transferred a substantial balance to the account, made numerous purchases on the account, made some payments, and ultimately breached the agreement by failing to make the required payments. This evidence was minimally sufficient to establish a meeting of the minds as to the material terms of a lending agreement, Muldrow's breach of that agreement, and the amount of Citibank's damages. See Hess v Cannon Twp, 265 Mich App 582, 592; 696 NW2d 742 (2005) (noting the elements to form a contract); Stoken v JET Electronics & Technology, Inc, 174 Mich App 457, 463; 436 NW2d 389 (1988) (stating that, in order to prove breach of contract, the plaintiff must prove the existence of a contract, a breach of the contract, and damages). Because Citibank properly supported its motion for summary disposition, Muldrow had to respond by presenting evidence that established a question of fact on at least one element of Citibank's claim, which she did not do. Barnard Mfg, 285 Mich App at 374. Therefore, the trial court properly granted Citibank's motion. ... There were no errors warranting relief. Affirmed. -- I view my task, in defending a collection lawsuit, as to object to any evidence that is hearsay or inadmissible with a focus of showing they failed to prove by admissible evidence on or more of the essential elements to their cause of action. I assist the trial judge in ruling in favor of the law and rules (cited in my trial record) that supports my arguments and defeats my opposition's arguments. Having made my proper record I appeal if the judge errors and rules against me. My priority at this point would likely be defeating the MSD and making a proper trial court record so that, if the court should rule against me, I can show that the court has erred on the laws and the admissible evidence. Meanwhile I would want to be preparing for trial. Getting a continuance on the trial date and propounding discovery on opposing, if permitted by the rules, would be something I would be interested in researching. Timely filing any required trial brief documents would be high on my todo list. Having never been sued by a JDB it appears that the defense often pursued against JDBs is the issue of standing. The thread in #10 is likely a good resource and I would speculate it probably touches on the issue of standing. Objection (some insights here: http://www.jameseducationcenter.com/articles/essential-objections-checklist/ ), followed by the reason I am objecting would probably be frequently voiced by me at an MSD/MSJ hearing that is being preserved by a court reporter, audio recording, or whatever is proper in my jurisdiction. If I have no money for a court reporter and there is no recording made by the court I would probably request the court allow me to record it myself and offer to provide opposing a copy of the recording. The worst they can say is no. I would not expect to be sworn in or have to affirm anything and would refuse to be the plaintiff's witness at a motion hearing. I would expect opposing counsel to testify and I would object to it. In federal 28 U.S. Code § 1746 and AZ Rule 80(i). Unsworn declarations under penalty of perjury declarations appear to fill the shoes of a sworn affidavit. I have yet to see a CC related collection use a declaration in AZ. I do not know if declarations are permitted in lieu of affidavits in MI. I did not see MI on this list: http://apps.americanbar.org/dch/thedl.cfm?filename=/IC756000/newsletterpubs/UnswornDecs.DOC . In CA the court rules appear to prohibit the use of an out of state declaration. I have used an out of state declaration in a CA Superior Court on a minor issue and the court did not reject such usage. If MI courts accept declarations by witnesses I would want to make sure that any declarations that opposing has filed with the court were in compliance with the requirements for a declaration in MI. Collection litigation, it is so easy I don't know why everyone doesn't want to do it.
  9. I have not experienced anything "great" about private contractual arbitration. The application of case law or contract terms in arbitration being more predictable, reliable, and reversible in arbitration than in court is also outside of my experience.. There are multiple AZ Court of Appeal reversals on CC summary judgments granted to OCs in the last year or two. See #22. I am unable to find any vacated arbitration awards for OC or JDB debt collection disputes in the AZ CoA. Perhaps those grants of vacatur of an arbitration award just never get appealed from the trial court in AZ. IDK Here is one I found that is a confirmation for a NAF award:FIA CARD SERVICES, NA v. Levy, 200 P.3d 1020, 219 Ariz. 523 (Ct. App. 2008). Perhaps there are some vacated arbitration awards for CC collection disputes to be found in NJ. This may be a start on that search: http://scholar.google.com/scholar?q=%22arbitration+award%22+vacate+%22credit+card%22&btnG=&hl=en&as_sdt=4%2C31
  10. The court would be the one imposing the sanctions. I usually have my hands full without pursuing sanctions for the lying and other bad behavior by DC attorneys. Having not filed similar, I believe the process usually involves something like a motion for an order to show cause why sanctions should not be brought. The opposing party gets a chance to explain their behavior, likely remedy the issue, and possibly avoid sanctions. Anyone that has pursued and received sanctions against an opposing party could probably better explain the procedure. At least in their jurisdiction. If appropriate I would probably make sure I clearly and politely documented on and for the record their failures. If not easily done in the record I may choose to send them a courtesy letter via CMRRR asking that they be sure to serve copies of all future filings as required by AZ civil rules of procedure xxxx© and xxxx(a) and noting the specific filing(s) they failed to send. If they insist on bad behavior I would then consider the hassle of properly attempting to pursue sanctions. Enjoyed reading dont-be-that-attorney-ten-ways-to-make-yourself-look-foolish: http://practiceoflawblog.com/dont-be-that-attorney-ten-ways-to-make-yourself-look-foolish/
  11. I would check the terms of my Verizon agreement. It may allow for arbitration or small claims. This one appears to permit AAA, BBB arbitration or small claims: http://www.verizon.com/ResidentialHelp/Generic/General/General+Topics/General+Questions/130383.htm?CMP=DMC-CVZ_ZZ_ZZ_Z_ZZ_N_X327 and includes a 30 day notice of dispute process: http://www.verizon.com/NROneRetail/NR/rdonlyres/90441AD2-595E-41E8-938E-BBBA785A19C7/0/VZ_Notice_of_Dispute_062512.pdf Taking an action such as noticing Verizon of arbitration, should it be available in the applicable agreement, *may* light a fire under them to resolve this small dispute quicker IDK. I would not take the filing of an AAA arbitration or court claim lightly. BBB seems to be much less formal and may be a viable option if available. It is possible that a AAA arbitration filing with its higher costs may be the most concern to Verizon and may get them to resolution quicker. Another option might be to consult with an competent consumer attorney that may be able to get a quick resolution.
  12. Avast has been working well for me. Nice tip on the XP patches update hack. Will have to check that out when I get in front of my XP units.
  13. A consumer winning a favorable arbitration award on a debt collection defense is highly unlikely. Arbitration is mainly a *potentially* cost prohibitive tool to cause the collector to abandon or favorably settle. I am not sure why there would be a "push on most credit sites is to MTC A with issues like this". If I recall correctly the OP's alleged debt is around 10k. Not what most would call a small alleged debt (small debts in high cost arb forums can create significant leverage for the alleged debtor in a collection dispute). JAMS arbitration consumer statistics: JAMS Disclosures for Consumer Arbitrations shows that the four AMEX arbitration cases that went to final hearing and award were all listed as NONCONSUMER under the Prevailing Party heading. The JAMS data shows: The consumer with the attorney representation lost an award for $23786.74 The consumer without attorney representation lost an award for $26933.36 The other two list award as NA The majority (23 out of 39) listed settlement as the Disposition Type. If filing in JAMS with AMEX, from a quick review of the statistics, I would probably be looking for an opportunity to settle whenever the terms offered were acceptable to me for resolving the dispute. The data does not show whether the settlements occur early in the process, at the final hearing or at any time in the process. Perhaps some would say I have a bias against arbitration ( I do not believe that is the case since I have received a check from a CA based on arbitration provided leverage). I think I have a realistic view of contractual binding arbitration's potential benefits in consumer cases and it's limitations. I also have collection defense "wins" in litigation and am much more confident that I can prevail in litigation Still, from my experience: In Arbitration No One Can Hear You Scream TM
  14. In a non-judicial foreclosure state, I have a note for my home loan with one spouse's signature on it and two spouses on the security/deed of trust. This occurred because it was what I wanted, I asked for it, and if the loan was denied I would have rented, paid cash, or financed outside of traditional banking. One-signature-notes may be much more likely to occur in states that bar deficiency when a home that was repossessed under foreclosure has a shortfall to pay off the loan due to more loan than value. It has happened in the past does it today? IDK Does it happen in deficiency states? IDK If I was the mortgagee I would likely want two signatures on the note if in a deficiency state. I find I rarely get what I don't ask for.