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Hi all, I'm new to this forum, have been reading other debt/credit forums for years now. This is long, and I apologize, but there's a lot of specifics. I'm in search of some very specific answers that require some understanding of Minn*eso*ta law. I cannot find clear answers to these questions in the Rules of Procedure. Approx. a year ago I was served (pocket service) a Summons & Complaint by Pe*zz*uto Law Firm, representing C-a- c-h LLC, who had purchased a debt from US Ba_nk (amt appro. $6500). I hired an atty listed on NACA, who drafted my Answer and submitted it to Pe*zz*uto within the 20 day time frame required in MN. Some initial disclosures were made, persuant to the newer rules of procedure in MN civil cases. (Essentially, Pe*zz*uto's office mailed my atty a couple statements, affidavit stating they owned the debt., etc.). Just short of the 1-year deadline for filing the case in court, Pe*zz*uto filed in district court. My atty admitted the affidavit doesn't technically meet standards of proof, but said he's dealt with many judges who accept it anyway and it would be hard for me to prevail in court. Suggested I try and settle. Either way, it would have been a retainer fee of roughly half my debt, so I declined. Instead, I decided to try push for arbitration, as there's an arb clause in the the US Bank contract that allows either party to initiate (including the contract Pe*zz*uto submitted to my atty). It includes JAMS, so my desire was to force the issue in the hopes they'd drop the case due to the high cost of JAMS. Now pro se, I completed the JAMS initiation paperwork, sent a copy to Pe*zz*uto's office with my cover letter stating I was initiating JAMS, then once I received proof of delivery sent the initiation in to JAMS. This was last week. Pe*zz*uto's office promptly mailed me a letter stating I'd waived my right to arbitration, citing Minn*eso*ta case law where MTC arb had been denied. I looked up both cases; one involved a case that was already deep in court litigation, and the other involved a case where arbitration was not brought up until _appeal_. Issue #1: Whether or not I have waived my right seems to be hinged on how the MN courts define lititation. If litigation is considered to be court proceedings, then I'm likely fine because I've not wasted the judge's time, etc. However, if litigation is considered to include the past year with the summons, my answer, and then crickets, then I may in fact be screwed. Does anyone know how this may be interpreted by a court or if I have indeed waived my right to arbitration by not initiating earlier? Likewise, arbitration was NOT indicated in the answer my atty sent to Pe*zz*uto (although there was that standard line about "other defenses" the defendant may assert blah blah blah). Issue #2: Although Pe*zz*uto received my Answer from my (now former) atty, preventing them from getting a default judgment, I've not filed an Answer in court. No court dates have been set YET. Folks on other boards have said to file a Motion to Compel Arb in Lieu of my Answer. This sounds great, except I am unsure how this works in terms of having a previous Answer floating around out there. Today I called 4 different attorneys in Minn*eap*olis. Either they didn't know enough about arb to help me or they only work on full retainer cases. No one could provide any guidance, even though I was willing to do a paid consult. So my second question is this: Can I file an Answer (or Motion in lieu of Answer) with the court that is NOT the same as the Answer sent to Pe*zz*uto's office a year ago by my former atty? Or, am I somehow legally bound to submit that answer? IF I file a MTC in Lieu, can Pe*zz*uto come back and claim I didn't make a strong assertion of arb in my Answer to them? And if so, am I doomed? I am under the gun with this given Pe*zz*uto's statement about seeking a summary judgement soon, and it will cost me $422 to file this stuff and if it's wrong the Court clerk will still accept it (as they can't give out any legal advice), so I obviously want to do this the right way. I've spent literally hours pouring over case law, appeal court opinions, rules of procedure, and other debt boards but due to some of the uniqueness of MN and this pocket service stuff, I just can't find specific answers to some of this. In fact, when I asked one atty earlier today if the Answer sent to Pe*zz*uto a year ago but not officially filed yet "counts" in the eyes of the court, he said, "Well....Yes and No." So, yeah. I need some help. Please. I'm begging. I feel like I'm losing my mind and my husband is sick of listening to me talk about this. I almost just threw in the towel today and called Pe*zz*uto to ask them how much they want to drop the case, but then regained my sanity. If you made it this far, thanks for reading (and you're a total saint). FM
Just got off the phone with the scheduling clerk at the courthouse. I have a date for my Motion to Compel to be heard. What's interesting is that the attys for CACH opened the case--hours before I got to the courthouse to file my motion--but have filed no paperwork, nor have they requested any hearing, etc. The clerk was a little confused. Why would I want to schedule a hearing? It was gratifying, though, to have her say, at the end, "Sounds like you have it under control." Yeah. Because of good people who are willing to share their experience and knowledge! The other good news? I can send my Proposed Order to the judge by email, instead of slogging into downtown in this brutal weather that won't go away. YAY for that! I do have a question for anyone who is familiar with this particular wrinkle. I was sent discovery and rogs, a little over two weeks ago. I plan to send my answers to the rogs in order to avoid the "you didn't deny it, so you admit it" conundrum. But I would much prefer not to get into Discovery, as it could trigger the argument that I've gone too far in the judicial process to now go to JAMS. In addition to what I did when I sent the Motion to Compel to the other party, which was to argue that Discovery is best left for the determination of the JAMS arbitrator, does anyone have any suggestions?