Jump to content

Back from court!


lisser
 Share

Recommended Posts

How come they send this Fed Ex? Bc it can be tracked? So I can't discuss the details even on here under an alias? POOOO!!!!

So say I get this Fed Ex letter, I have to call them? Do I make them an offer or do they make me an offer. I'll be happy to offer $0 :) No problemo.

You've done all the hard work already.

I don't know why they use FedEx, but that seems to be the method. It is just a letter asking you to contact them. You don't HAVE to call them, but I would recommend it. This will be a different experience than with the collectors. You are in a better negotiating position then you were ever in with the collectors pre-suit.

You can offer whatever you want. But remember it is a negotiation. Usually a negotiation starts from two points and then moves to the middle. If you want $0, have some state or FDCPA violations ready to discuss when you call. Tell them you plan to pursue those in arbitration for however much they are worth, $1,000 for FDCPA, and $3,000 for state violations for example. If you are going that route, have the violations listed and in hand and the law that allows you to collect on them. You do not have to prove the case on the phone, just have a reasonable claim to present.

Great Job! Good Luck! And keep us posted. (for as long as you can :rolleyes:"

Link to comment
Share on other sites

  • Replies 50
  • Created
  • Last Reply

Top Posters In This Topic

I'm not sure that they have violated anything, the little communication that I've had with them has been pleasant and hasn't offended me. That's not to say that they didn't violate anything though just bc what has been said was nice..ha!

I just called the clerk that was in the courtroom during my hearing, she said, "I remember you, you did GREAT!" That made me feel so good!! So I told her I left a little confused and not knowing exactly what the judge expected me to do. She read what the judge ordered and said she would mail me a copy. This is what she said he wrote, "Parties ordered to arbitration persuant to contract...." She then said a word that meant the same as stayed referring to the case bc I asked her, "does that mean stayed" and she said yes. I can't remember the word she used though. So then I asked her what I do from here and she said Mr. Cap 1 attorney is supposed to draft up an order from here as to who initiates. Now what if he draws up an order that says I'm supposed to initiate and the judge signs that without my approving it? Can I then object to that order? Do we even think that Mr. Cap 1 attorney is going to go that far with it?

I asked the clerk about the hearing on Sept. 17th for MSJ, she said that is null and void now. I told her it's still on the docket online, she said they keep it on there so they can keep track of things but expect for that to fall off the docket once Mr. Cap 1 attorney drafts up the arbitration order. She said if it doesn't come off soon to call. I will do that but I will also show up just in case! No one is going to sneak anything past me.

I don't mind filing with JAMS at all but I don't want to pay the $250 fee until a judge says I have to! $250 is a small price to pay but I don't want to waste it when I don't think Cap 1 will be paying their filing fee! I want the order to say something like, "Defendant agrees to pay her filing fee concurrently with Plaintiff paying theirs!!!!!" In other words, I'll pay mine when they pay theirs!

If Mr. Cap 1 atty doesn't file his order within a week I'm going to file a motion to dismiss! Do you all think that would be good? All suggestions are welcome.

Link to comment
Share on other sites

As I stated battle was won, war goes on as you see from your conversation with the clerk.

Check your court rules on "Orders", in my state which ever side drafts the order they must send to the other side for review and approval. The side doing the approval has a certain time to approve and return, if there is no response then filed with court for final signature.

Check your court web site to see if there is a online section called "tenative rulings". This might give you the same information as what the clerk stated in writing.

Finally, it was your motion that won, so don't assume other side will right an order and you should re-prepare your order based on the judges ruling. This would assure you inserting that they initiate.

Still a fantatic job yesterday..

Link to comment
Share on other sites

The clerk may be confused about the plaintiff drafting an order. The order was created and signed by the judge based on your hearing. You presented the order to the court. A lot of Pro Se's do not bring an order, so the judge asks the attorney to draft the order.

If Cap1 wants you to initiate, they would need to draft a motion to compel you to initiate. You would then be able to object to that motion. There should not be any orders submitted without a motion. You "moved" the court with your Motion to Compel, they would need to "move" the court to force you to initiate. The judge already said he would not force you to initiate, so they could not just present an order that says so.

I would wait and let Cap1 make the next move. The case is stayed so wait it out. Check your local rules for lack of prosecution, and wait that amount of time to file for dismissal.

Link to comment
Share on other sites

I did write up an order but the judge gave his copy back to me blank. He was thankful that I wrote it but when Cap1's attorney saw it, he made fun of it bc it called for someone to "put an X or a check mark" so I think the judge said ok, you write one up counselor and let us see it....

I've found my court rules on judgments and orders. Here is the link, page 33 if anyone wants to double check my findings and let me know your thoughts:

http://apps.kycourts.net/localrules/rules/D54localrules.pdf

Here are the bare bones pretty much:

All judgments and orders presented to the Court for signature shall contain the

scrivener's typed name and signature and :

l . Contain a certification by counsel that the order has been sent or delivered to

opposing counsel and the date sent or delivered. Opposing counsel has ten (10) days within

which to file an objection only on the basis that the order or judgment is not in conformity

with the ruling of the Court. If no objection is filed within said time the Court will enter the

order or judgment .

-or-2 . Contain a "Have Seen" endorsement of all other attorneys of record . This

endorsement shall constitute an acceptance by said counsel gWy that the order or judgment

is in conformity with the ruling of the Court .

There is a section in there on failure to prosecute as well right after the judgement and orders section....I'm going to read up on this now and also look for the tenative rulings section.

Thanks guys! Keep the suggestions coming!

Link to comment
Share on other sites

Interesting here on failure to prosecute:

RULE 14. DISMISSAL OF CIVIL ACTIONS FOR FAILURE TO PROSECUTE

A. At least once a year, the Clerk shall review all pending actions on the docket . The

Clerk shall cause a written Notice to be given to each attorney of record, or litigant if pro set, of

every case in which no pre-trial step has been taken within the last year, that the case will be

dismissed without prejudice in thirty (30) days for want of prosecution except for good cause shown

by affidavit . The Court shall enter an Order dismissing each case without prejudice at Plaintiff's cost.

I wonder when these times are "at least once a year." Would be great to know! Maybe if I don't hear anything from Cap 1 within 30 days I can I can move for dismissal with prejudice for failure to prosecute?

Link to comment
Share on other sites

Guest usctrojanalum
You say the case before did not require a valid agreement? What an idiot judge. You may have liked him, but that debtors lawyer was an idiot if he didn't object.

Judge is right though. I've been harping on this since day 1 on this board but for some reason you are on your own deluisional island. You persistently think that a signed agreement needs to be provided to prove that a contractual relationship exists, this is simply not the case. An offer of the credit card and its acceptance by its use is a contract, whether it be in writing or not. That is basic high school contract/business law type material.

In civil courts we use the level of evidence that is called the "preponderence of the evidence" not beyond a reasonable doubt.

OP, you did fantastic.

Link to comment
Share on other sites

I did write up an order but the judge gave his copy back to me blank. He was thankful that I wrote it but when Cap1's attorney saw it, he made fun of it bc it called for someone to "put an X or a check mark" so I think the judge said ok, you write one up counselor and let us see it....

Got it. If they write an Order saying you need to initiate, do not sign off on it. Send it back and tell them it needs to conform to the judges statement, "well I don't see how I can force her to initiate it..."

Great job reading up on the procedures and learning the rules of the game.xWhipMex

Link to comment
Share on other sites

The advice you have been getting about waiting for the order, and then objecting if it mentions you initiating is very good.

As for the $250, some arbitration veterans say you should NOT pay the $250 up front. They say you should wait until the alleged creditor has paid its part, which is considerably more. If they don't pay, then go to the judge and say they are refusing to pay. Ask for dismissal. If they DO pay, THEN you can pay the $250.

Link to comment
Share on other sites

Hey guys, I got my copy of the judge's order in the mail today. Here is what it says, "Parties ordered to arbitration pursuant to contract sued upon. This action held in abatement pending termination of arbitration proceedings."

So comments on this please...no word of who is supposed to initiate bc the judge said he can't force me to initiate....what do you all think the next move will be on Cap 1's part, should I go ahead and initiate and just not pay the $250 fee?

Link to comment
Share on other sites

Nobk is right, you are in the cat bird seat. Their claim they want money from you so they can initiate if they really want their money. Next play is theirs, no need for you to contact them. You have them in the proverbial box, court is gone until arb is completed, they will have to spend big dollars just to see the arbitrator, that they don't recover if if they win.

Great place for you to be...

Link to comment
Share on other sites

Thanks so much guys for your guidance and comments. I really feel a lot better now! I will keep everyone posted on what happens next. I still need to keep an eye on the docket though to make sure that Sept. 27th MSJ falls off. I don't want anyone trying to sneak a judgment in on me.

Link to comment
Share on other sites

Congrats - but it's not over yet. You still need to win at arbitration. And remember, arbitration is not court and you don't have the same protections.

Just saying they will back down doesn't mean they will. However, hopefully all will turn out well for you.

Link to comment
Share on other sites

Congrats - but it's not over yet. You still need to win at arbitration. And remember, arbitration is not court and you don't have the same protections.

Just saying they will back down doesn't mean they will. However, hopefully all will turn out well for you.

This is the part I don't understand. What protections do you have in court that you lose with arbitration?

Link to comment
Share on other sites

Arbitration is not court. You can't request discovery, and the burden of proof is not on the plaintiff. The person making the final decision is not a judge - you have to convince him or her that you are in the right.

If arbitration is ruled for the plaintiff, the only way you can fight it is when the plaintiff seeks to turn the arbitration order into a judgment. Which is another court trial.

Link to comment
Share on other sites

Arbitration is not court. You can't request discovery, and the burden of proof is not on the plaintiff. The person making the final decision is not a judge - you have to convince him or her that you are in the right.

If arbitration is ruled for the plaintiff, the only way you can fight it is when the plaintiff seeks to turn the arbitration order into a judgment. Which is another court trial.

Discovery is available in arbitration. Here is a link to JAMS rules, read rule 13.

http://www.jamsadr.com/rules-streamlined-arbitration/

This is if you only have streamlined rules, comprehensive gives you even more.

I like you only want to see that everyone is receiving accurate information.

Link to comment
Share on other sites

Guest usctrojanalum
This is the part I don't understand. What protections do you have in court that you lose with arbitration?

The biggest and most important/obvious one is the right to appeal a decision.

Link to comment
Share on other sites

JAMS Optional Appeal Procedure.

The parties hereby agree to the following Optional Appeal Procedures:

(A) The Appeal Panel will consist of three neutral members, unless the Parties agree that there will be one neutral member. Upon the filing of an Appeal in accordance with (B)(i) below, the Case Manager will recommend to the Parties an Appeal Panel and will make any disclosures that are mandated by applicable law regarding the candidates for the Panel. The Case Manager will seek the agreement of the Parties as to the selection of the Appeal Panel members. If the Parties do not agree on the composition of the Appeal Panel within seven (7) calendar days of having received the Case Manager recommendation for the Appeal Panel, the Case Manager will appoint an Appeal Panel.

(B) The Procedure for filing and arguing an Appeal is as follows:

(i) If all Parties have agreed to the Optional Appeal Procedure, any party may Appeal an Arbitration Award that has been rendered pursuant to the applicable JAMS Arbitration Rules and has become final. The Appeal must be served, in writing, to the Case Manager and on the opposing Party(ies) within fourteen (14) calendar days after the Award has become final. The letter or other writing evidencing the Appeal must specify those elements of the Award that are being Appealed and must contain a brief statement of the basis for the Appeal.

(ii) Within seven (7) calendar days of the service of the Appeal, the opposing Party(ies) may serve on the Case Manager and on the opposing Party(ies) a Cross-Appeal with respect to any element of the Award. The letter or other writing evidencing the Cross-Appeal must specify those elements of the Award that are being Appealed and must contain a brief statement of the basis for the Cross-Appeal.

(iii) The record on Appeal will consist of the stenographic or other record of the Arbitration Hearing and all exhibits, deposition transcripts and affidavits that had been accepted into the record of the Arbitration Hearing by the Arbitrator(s). The Parties will cooperate with the Case Manager in compiling the record on Appeal, and the Case Manager will provide the record to the Appeal Panel. No evidence not previously accepted by the Arbitrator(s) will be considered by the Appeal Panel, unless the basis of the Appeal is non-acceptance by the Arbitrator of certain evidence or unless the Appeal Panel determines that there is good cause to re-open the record pursuant to the applicable JAMS Arbitration Rules.

(iv) The Parties may elect to rely on the memoranda or briefs previously submitted to the Arbitrator(s). In the absence of such election, the Case Manager will obtain the agreement of the Parties on a briefing schedule.

If no agreement is reached, the Case Manager will set the briefing schedule. Ordinarily, only opening briefs (of no more than 25 double-spaced pages) will be allowed. The briefs may be in the form of a letter.

(v) The Appeal Panel will conduct an oral argument if all Parties request such argument or may conduct oral argument, in complex cases or unusual circumstances, on its own initiative.

If there is to be oral arguments, the Case Manager will obtain the agreement of the Parties on both the date of such argument and the duration, including the allocation of time. In the absence of agreement, the Appeal Panel will set the date and duration of the oral argument, including the allocation of time.

(vi) All fees for the original arbitration must be paid in full before an appeal will be scheduled.

© Once an Appeal has been timely filed, the Arbitration Award is no longer considered final for purposes of seeking judicial enforcement, modification or vacating pursuant to the applicable JAMS Arbitration Rules.

(D) The Appeal Panel will apply the same standard of review that the first-level appellate court in the jurisdiction would apply to an appeal from the trial court decision. The Appeal Panel will respect the evidentiary standard set forth in Rule 22(d) of the JAMS Comprehensive Arbitration Rules. The Panel may affirm, reverse or modify an Award.

The Panel may not remand to the original Arbitrator(s), but may re-open the record in order to review evidence that had been improperly excluded by the Arbitrator(s) or evidence that is now necessary in light of the Panel's interpretation of the relevant substantive law. A three-member Appeal Panel will make its decision by majority vote and, absent good cause for an extension, will issue the decision within twenty-one (21) calendar days of the date of either oral argument, the receipt of the new evidence or receipt of the record and of all briefs, whichever is applicable or later. The Panel's decision will consist of a concise written explanation, unless all Parties agree otherwise.

(E) If a Party refuses to participate in the Optional Appeal Procedure after having agreed to do so, the Appeal Panel will maintain jurisdiction over the Appeal and will consider the Appeal as if all Parties were participating, including retaining the authority to modify any Award or element of an Award that had previously been entered in favor of the non-participating Party, assuming it believes that the record, after application of the appropriate standard of Appeal, justifies such action.

(F) After the Appeal Panel has rendered a decision and provided the Parties have paid all JAMS fees in full, JAMS will issue the decision by serving copies on the Parties. Service will be deemed effective five (5) calendar days after deposit in the US Mail. Upon service of the Appeal Panel decision, the Award will be final for purposes of judicial review.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share


×
×
  • Create New...