Jump to content

Pre-trial with Cap1 today....what just happened??


bevj2
 Share

Recommended Posts

I had a pre-trial scheduling conference today...here is what happened.

It was in judge's chambers, but judge was in trial so bailiff "presided" instead. Attorneys sent a rent-a-lawyer to represent them. Bailiff asked some questions, I said I'm not sure if this is my debt, don't have enough info to admit/deny, no agreement was attached to complaint, no account number, complaint failed to state a claim for basis of lawsuit. Bailiff asked RAL if they had any application with my signature, he said no. Bailiff asked if I had talked to attorney for plainitff, and I said no, I had never heard of them before the summons and nobody had contacted me. So then, he looks at the RAL, and says...Okay, then the next move should be for plaintiff to submit a MSJ. Keep in mind, I just got plaintiff's discovery week before last, and am almost finished with mine for them.

So I said, wait a minute, why are you saying that if discovery hasn't even been completed yet? I also said, I thought this conference today was to set dates for discovery and pre-trial. He gave me some mumbo-jumbo about plaintiff doing MSJ on their pleadings, this probably won't go to trial, I can answer their motion with whatever questions/arguments I may have. I was literally speechless....then he said, do you have anything else to say?

I said, yes...I'm not trying to be difficult, but I don't see how you can tell them to go ahead and file for MSJ when we are in the middle of discovery, MSJ is for when there are no issues of material fact, and I for sure have some issues! I then asked the RAL directly if he was the attorney for plaintiff (I didn't know until then), and he said no, just a rep hired for this conference. I asked if he had a copy of the agreement, and again he said no. I said well, I'm also aware that Cap1 has arbitration in their agreements, and he comes back with "Well, not always, in the past there were times where arbitration wasn't in the agreement". I said, well, I can't really be sure until I see MY agreement, and I may have a right to arbitrate this. Well, that pretty much shut them both up. That was the end of the meeting.

I really am confused now....I felt like it was a couple of good ole' boys figuring this chick would just say "okay, sir, who do I make the check out to?" Since I have never been through anything like this before, I was hoping someone could chime in with their opinion....was what happened normal? Would a judge (or bailiff), in a pre-trial scheduling conference, advise either side to submit MSJ, knowing discovery is ongoing? What options do I have? Wait until I get the MSJ and then answer it, with a motion to deny? Should I file my OWN MSJ, claiming plaintiff did not attach the necessary documents to the complaint as required by RCP? I know that MSJ can be filed at any time, if there is no issue of material fact. But, since I denied everything in my answer, and had some pretty good affirmative defenses, AND advised today that I am disputing for the above mentioned reasons, wouldn't that suffice as issues? As always, I thank the great people here, and hope that someone can shed some light on this. :cool:

Link to comment
Share on other sites

First of all.

YOU HANDLED YOURSELF PERFECT!

Second of all,

Your "good 'ole boy" assessment of the situation is right on the money.

Third of all, (if you are not going to get an attorney to smack this "good ole' boy" network down.)

THIS IS A PERFECT SITUATION WHERE YOU SHOULD EXERCISE ARBITRATION!

You are essentially being denied discovery by this quasi-court official, it sounds like this court just rubber stamps these things. Does this law office give large money to this judge's campaign?

JAMS arbitration is more inherently fair, from my viewpoint than this courtroom.

Exercise your right out of this alleged courtroom.

Arbitration drives debt attorneys crazy these days!

Edited by trueq
Link to comment
Share on other sites

That Cap1 arbitration agreements didn't always have an arbitration clause (and thereby implying yours doesn't)?

If the plaintiff attorney said this, this may be a violation of FDCPA since he did not "reasonably review" the agreement in question!

A debt collector cannot misrepresent the legal status of a debt. Whether or not an arbitration clause exists is legal status.

It also could be construed as a deceptive statement under most state law deceptive trade practices act.

I have a Cap1 agreement with the arbitration clause I can fax to you.

Since all this crap is unsigned, I'd love to see how they prove there is NO arbitration agreement.

I'd be licking my chops on countersuits if I was in this position. (In fact I am. Had almost same issue. JDB denied arbitration clause existed to escape arbitration order. Caught their affiant admitting arbitration clause. Oh yeah! Its getting real interesting this week when we drag them all in for depo!!!!!)

I keep saying it, with NAF and AAA out, and the new consumer friendly JAMS rules (they drafted to avoid fate of NAF), debt lawyers don't want anything to do with arbitration!

Edited by trueq
Link to comment
Share on other sites

That Cap1 arbitration agreements didn't always have an arbitration clause (and thereby implying yours doesn't)?

If the plaintiff attorney said this, this may be a violation of FDCPA since he did not "reasonably review" the agreement in question!

A debt collector cannot misrepresent the legal status of a debt. Whether or not an arbitration clause exists is legal status.

It also could be construed as a deceptive statement under most state law deceptive trade practices act.

I have a Cap1 agreement with the arbitration clausse I can fax to you.

Since all this crap is unsigned, I'd love to see how they prove there is NO arbitration agreement.

I'd be licking my chops on countersuits if I was in this position. (In fact I am. Had almost same issue. JDB denied arbitration clause existed to escape arbitration order. Caught theur affiant admitting arbitration clause. Oh yeah! Its getting real interesting this week when we drag them all in for depo!!!!!)

I keep saying it, with NAF and AAA out, and the new consumer friendly JAMS rules (they drafted to avoid fate of NAF), debt lawyers don't want anything to do with arbitration!

It was the rent-a-lawyer who said it....the actual attorney wasn't there. Also, Cap1 is listed as the plaintiff, and even though the attorneys are known as debt collectors, I don't think they are JDB in this case. So...FDCPA wouldn't apply here, would it? Also, how could I prove this guy said that? Nothing was recorded....

Link to comment
Share on other sites

fwiw, any party to an action (plaintiff or defendant) can submit a motion for summary judgment whenever they want. Does not matter if discovery is on going or not. It is up to a judge to decide if there is a material issue of fact.

I'm aware that MSJ can be brought at any time by any party, but this was the BAILIFF, not the judge, advising the plaintiff to do so, at a conference that was intended to "dicuss discovery matters, applicable pre-trial motions, and settlement possibilities" (taken word-for-word from the order). My issue is that the pre-trial motion of MSJ is not really "applicable" if I am sitting there stating material issues of fact, and was basically dismissed like some back-water slug who didn't matter. I don't know, maybe I'm taking it the wrong way. But, it didn't set well with me at all. Why didn't the bailiff tell ME to submit a MSJ, considering the complaint didn't follow the RCP in attaching evidence, did not state a claim, there were no affadavits from OC, no account number on ANYTHING, no application with my signature, etc.

As stated by trueq in his earlier post, I think this court just rubber-stamps everything, the bailiff even said "this won't be going to trial". How does he know??? If he has such psychic powers, I guess I should have asked him what the lottery numbers will be for tonight. :lol:

Link to comment
Share on other sites

YOU HANDLED YOURSELF PERFECT!

I can't say if this is "normal" for Ohio, as that's not where I live, but I agree 100% with trueq's comment. I am very impressed.

I would say, in my always humble opinion, that you should complete Discovery, and object to any MSJ that they might submit.

I wish you all the luck in the world.

DH

Link to comment
Share on other sites

MSJ, yes can be filed at anytime.

But for an officer of the court (in this case a Quasi-officer) to advise which motion they would like to see from a specific party next is a huge ethical/legal concern.

Its like a judge asking if the defense wants to set aside the judgment or verdict, then the defense makes the motion, and judge grants.

Haven't you got to this part in law school yet?

Link to comment
Share on other sites

is subject to FDCPA.

-if he says no arbitration clause exists, and there is---its a FDCPA violation

-if he says OR IMPLIES no arbitration clause exists and has not reviewed the agreement---its a FDCPA violation

-if he denies you your right to arbitrate, through lack of notice that such rights may exist, or purposefully and effectively denies you those rights by refusing to disclose the agreement----its a FDCPA violation.

SUE! SUE! SUE!

The only issue will be. Is he a "debt collector" under FDCPA. I say "Yes".

Here is some commentary on who is a debt collector under FDCPA.

http://www.familyandconsumerlaw.com/2009/08/whos-debt-collector.html

http://www.familyandconsumerlaw.com/2009/09/creditors-becoming-debt-collectors-dogs.html

http://www.familyandconsumerlaw.com/2009/09/names-uh-bond-friday-someone-else.html

http://www.familyandconsumerlaw.com/2009/09/unconfuse-is-now-word-and-it-applies-to.html

Link to comment
Share on other sites

is subject to FDCPA.

-if he says no arbitration clause exists, and there is---its a FDCPA violation

-if he says OR IMPLIES no arbitration clause exists and has not reviewed the agreement---its a FDCPA violation

-if he denies you your right to arbitrate, through lack of notice that such rights may exist, or purposefully and effectively denies you those rights by refusing to disclose the agreement----its a FDCPA violation.

SUE! SUE! SUE!

The only issue will be. Is he a "debt collector" under FDCPA. I say "Yes".QUOTE]

I agree, I think the attorney representing Cap1 is a debt collector as seen in the eyes of the law. The letter they sent with their discovery even included the sentence "Please contact me about setting up payments arrangements of $XX per month on said account", and of course "This law firm is a debt collector attempting to collect this debt..." The rent-a-lawyer definitely implied there was no arbitration clause in the agreement, while at the same time saying they didn't have a copy of the agreement. My dillemma is this....how do I prove this? Like I said, nothing was recorded, and I'm pretty sure the bailiff wouldn't be any help. And....even if I wanted to pursue this, I'm not sure how. I may be wrong, but I'm thinking anything said today in chambers would be inadmissable as evidence.

Link to comment
Share on other sites

As a general rule, if one says they are a "debt collector", than they are.

I think that letter is 99% of the battle in proving this attorney is a debt collector.

FDCPA requires that if you are a debt collector that they tell you every time they contact you. Attorneys always do this as to not run afoul of this point of the FDCPA.

HOWEVER, if they are not a debt collector and say they are, they can become a debt collector under FDCPA.

In essence, attorneys are running around saying they are debt collectors in order to not run afoul of FDCPA, may be subjecting themselves to FDCPA in some circumstances.

I'd see a good consumer lawyer. This one seems "tee'd up" for lawsuit against attorney and the firm that hired him.

Edited by trueq
Link to comment
Share on other sites

fwiw, any party to an action (plaintiff or defendant) can submit a motion for summary judgment whenever they want. Does not matter if discovery is on going or not. It is up to a judge to decide if there is a material issue of fact.

If the motion gets set for hearing you can always request a continuance based on the lack of discovery responses, etc. Do a little research and you will find many ways to delay a hearing on MSJ. Also, if the plaintiff is a JDB they will have to prove standing and have their business documents correctly established. Remember that it will be up to you to present all this to the judge.

If you always proceed like the judiciary has no idea of what the law is on a subject you will avoid a lot of surprises.

Link to comment
Share on other sites

MSJ, yes can be filed at anytime.

But for an officer of the court (in this case a Quasi-officer) to advise which motion they would like to see from a specific party next is a huge ethical/legal concern.

I would not call it a huge ethical concern, I don't think it's that big of a deal really especially if this is commonly the next step in that court. I will admit though it is a little strange he would say anything to that effect though.

since I denied everything in my answer, and had some pretty good affirmative defenses, AND advised today that I am disputing for the above mentioned reasons, wouldn't that suffice as issues?

Again, if the plaintiff wanted to bring an MSJ - they would provide their evidence in the motion, you would provide your opposition and the judge or legal clerk would decide if there is a material issue of fact or not. You can't just say but I denied everything in my answer, there are definitely issues! From the sounds of it though, there appears to definitely be some issues that need to be resolved.

Link to comment
Share on other sites

First of all, many thanks to everyone's advice, support, and commentary. I guess for now I will finish with my discovery questions and get them sent to the attorney ASAP, then answer theirs. I have no idea how long it will take them to file their motion, but I'm pretty sure it will be within the next couple of weeks. I will also go study the court rules some more so I can be prepared with any objections to motions on their parts.

Again, maybe I'm making too big of a deal, but it did seem like I was just being dismissed, and the implication was that I had lost before I had even begun. Believe me, as soon as the plaintiff provides that agreement (assuming he does, and he better if it was specifically referenced as evidence in the complaint), arbitration will definitely be a course of action I will consider.

Link to comment
Share on other sites

I can't say if this is "normal" for Ohio, as that's not where I live, but I agree 100% with trueq's comment. I am very impressed.

I would say, in my always humble opinion, that you should complete Discovery, and object to any MSJ that they might submit.

I wish you all the luck in the world.

DH

Thanks, to both trueq and DH, for your comments...they made me feel better. That means alot in these trying times. xdancex

Link to comment
Share on other sites

When is a bailiff a judge?

This smells to high heaven.

Agree, 100%. I have found that when some people are caught unaware (like the plaintiff's attorney), they just make statements AS IF they are fact so you just back down.:shock:

Well, don't back down! You are doing the right thing. I don't have info to help you - I just want to applaud your style - go get um! :mrgreen:

Link to comment
Share on other sites

Does anyone know (or can think) of any recourse I have, such as writing a letter to the judge (or someone else, I have no idea who) stating I feel the bailiff's actions were improper? Or, should I just let this go, and hope for the best? The judge for my case is the court's presiding judge, and hears pretty high-profile cases for murder, kidnapping, embezzelment, etc. I have to wonder why my case is in her court to begin with!! I'm sure she has other, more pressing issues to hear besides a stupid debt collection case!

Link to comment
Share on other sites

Ohio Board of Commissioners on Grievences and Discipline.

Hope this helps. Review the Code of Judicial Conduct and cite specific rules violations in your complaint. It will take time and is a pain in the rear, but unless someone complains nothing will get done to correct the issue.

Thanks for the link, FlaLawyer! Now, I just have to decide if it is really worth it...plus the fact that it was the bailiff, and not the judge, makes me wonder if any complaint would still be legitimate. I did find this in the court rules for my county, with my commentary/questions...

II. PRETRIAL CONFERENCE:

A. Attorneys should consult with their clients in advance of the conference and be prepared to confer practically and earnestly on settlement and all other matters as may aid in the disposition of the action. The Court with counsel may:

1. Inquire into the status and possibility of settlement, discovery completed to date and anticipated prior to the time of trial; No questions were asked regarding discovery, I was the one who brought it up

2. Establish the date for the delivery of a medical and special damages package;

3. Establish a date for the parties to reveal, to each other, the identity of its expert witnesses; No questions as to witnesses, no dates discussed at all

4. Establish a date for the filing of any memorandums on disputed issues of law or fact and establish a discovery cut-off date; Subject not brought up, no dates discussed at all

5. Grant leave of Court to all parties to file whatever motions deemed necessary, including motions for summary judgment, by a date certain; Is what happened basically the bailiff granting leave for the plaintiff to file MSJ? There were absolutely NO DATES set/given/discussed

6. Establish a date for filing a joint or individually prepared pretrial statements; Again, no dates, no discussion of this

7. Establish a date for a final pretrial conference; Wasn't even mentioned

8. Establish a trial date. The failure to have a pretrial/scheduling conference shall not be a cause for continuance if a trial date has been assigned. Per bailiff's comments, probably won't be a trial, so no dates set here either

Link to comment
Share on other sites

there are usually multiple pretrial conferences before you actually get to a trial (the court would rather have the parties settle it out then go to trial) so all those issues you pointed out probably would never ever been done at 1 pretrial conference, but rather over the course of 3-5 (maybe more). If after all of those conferences the parties can't come to an agreement they ask the court for a trial date.

Link to comment
Share on other sites

there are usually multiple pretrial conferences before you actually get to a trial (the court would rather have the parties settle it out then go to trial) so all those issues you pointed out probably would never ever been done at 1 pretrial conference, but rather over the course of 3-5 (maybe more). If after all of those conferences the parties can't come to an agreement they ask the court for a trial date.

Thanks for the input, ualbany....actually, I have yet to find any case in my county where there was more than one pre-trial (granted, most cases were default judgements). Also, I guess I was concerned because there were no dates set for anything. I will be checking my case next week to see what is filed in regards to this, hopefully the judge will note dates and such and I will have a better idea of the timeline of things. In the meantime, I will go ahead and send my discovery requests to the plaintiff, and answer theirs. :)

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.