purplehrj

2nd Mediation date was set, and Judgement entered against me!

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I live in AZ, had posted a thread regarding this case with Capital one. (CAP1)

But didnt get a whole lot of questions resolved, and I am still fighting.

We've had our first mediation session ordered by the court, but nothing went through. and So the lawyer offered to have another mediation to see if we can come up with the reasonable amount to settle.

The 2nd mediation date is set to 1/10/12.

Today, I received a mail from court saying that they are entering judgement against us.

This matter, having come on before the Court on Plaintiff's Motion for Entry of Default and the Court having reviewed the pleadings of record and the Affidavits submitted by the Plaintiff in connection therewith, finds that ______name__ was regularly served with process that the Plaintiff's claim is for a sum certain, that ____ is neither an infant, and incompetent, nor a member of military service, and that Plaintiff is entitled to the relief requested.

and BLAH BLAH BLAH and so forth.

Before our 1st mediation date, they tried to MSJ, and we tried to stop it.

We received our 2nd Mediation date afterwards.

after the 2nd Mediation date has been set, the court sent the "rejecting their MSJ" (but it said we didnt respond to the MSJ), and then the court denied our Motion as well.

I am very confused to as how/why the judge granted the judgement against us, when we had a second mediation date scheduled.

Law firm is Burton Lippman, whom I heard that they do unfair practices, and someone had their case dismissed due to their unfair practices.

Here are some questions that occurs to me

1. From reading the judgement paper, is it possible that the Law firm pulled something shady on us to get the judgement? (I am trying to have this case dismissed as well based on unfair pratices..)

2. Is this simply a court error?

3. Their attached paper contains CC agreements that are dated all different.

Ranging from 2005, 2008 and 2010 (ours should be 06-08). How can this still be valid?

4. I am planning on filing motion to vacate, but I dont know what the reasons should be provided.

5. At this point, should I vacate as well as initiate JAMS?

6. Last payment made was in Jan 2008, they filed complaint in Feb 2011.

Would it still be possible to fight this as SOL VA law? (CAP1)

Thank you so much.

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I am very confused to as how/why the judge granted the judgement against us, when we had a second mediation date scheduled.

I am too. Are you certain about the chain of events?

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Unfortunately yes.

I went and dig out all of the papers since the begining, and found out that they did file Motion for entry default after 20 days of delivering summon, but I had additional 10 more days to file so we werent late filing our answer.

(We thought that it was 20 business days, lol)

So I understand where the judge saw that, but the date of the judgement granted is Nov 28th, 2011.

So it makes no sense to me what the heck the judge was doing.

clearly, he/she is not doing their job, and I believe its a court error.

We're gna call the court tomorrow and verify what happened, and maybe they might tell us what we have to do.

-file motion to vacate or such.

in any case,

Would 3 year SOL be better defense than initiating JAMS?

Affidavit was from a person working for CAP1 in VA, so I am thinking there might be a chance if I use VA SOL (3 years) instead of AZ 'clarified' SOL 6 years.

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We're gna call the court tomorrow and verify what happened, and maybe they might tell us what we have to do. file motion to vacate or such.

Your not going to get legal advice from the court. I would not even try that. Here is what I would do.

Go to the courthouse and make a complete copy of the case file. Then put everything in order and basically make your own time line to see what happened.

Start with getting served, to your answer, and then look for the dates of what happened and compare that with the rules of procedure and/or what the judge ordered could happen.

What your posting makes no sense. Look for trickery or procedural moves by the other side. It's pretty common for a collection atty to lead you by the hand, give the perception that your "working together" and basically be leading you to the cliff and pushing you off.

Calling the court to get advice is a bad move. I would not expect you to even get past the person answering the pone. Plus, while you have practically no shot at getting legal advice, anything they tell you will be off the record. After your research, you can then motion to vacate, motion for some type of reconsideration, or other type of relief.

Also, keep in mind the date the Judge signs the order does not mean that is the day the matter was decided.

Finally, the statute of limitations has to do with the time they have to actually sue you on the debt. The statute right now is tolling. JAMS is also not an option right now. The case has been decided. If you get it vacated, then you can revisit the possible strategy of arbitration.

Right now you need to gather all the hard evidence (case files) you can and find out what in the world happened and who is to blame for what happened. You just need to hope it does not fall on you.

Good Luck, and let us know what you find out.

in any case,

Would 3 year SOL be better defense than initiating JAMS?

Affidavit was from a person working for CAP1 in VA, so I am thinking there might be a chance if I use VA SOL (3 years) instead of AZ 'clarified' SOL 6 years.

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So here is a brief timeline (based on court stamped)

9/10 Plaintiff filed MSJ

9/29 1st Mediation , no agreement. Lawyer offered to reschedule

10/11 received notoice for 2nd mediation set for 1/10/2012

10/20 we filed MTDSJ

11/2 MSJ Hearing vacate

also marked Defendant, No responsive pleading was filed

11/21 Our MTDSJ denied

11/28 Judgement entered against us.

On 11/2 Hearing vacated, the judge forgot to mark IT IS ORDERED GRANTING SAID MOTION

We found diecrepencies between what we had vs. what the court had.

I guess only if we would have known that this was what really happened, something could have been done.

The lady at the court window claims that this judge (she) looks at everything, and she had our MTDSJ in file before she granted judgement against us.

Spoke with the company lawyer (one of his employee benfits when registered), he recommended Appeal if we have good material facts to do so.

But obviously, this is our (my husband's to be exact) debt.

**I also asked for his opinion on electing private arbitration, and he said he hates it. I've heard that from other lawyers before so I am going to assume that this would be harder ways to deal with the defendants**

He also said that it would be point less to file motion to vacate because its unlikely that we would be granted at this point. (I guess due to not enough evidence to support)

Since his last payment made was in Jan 2008, they sued us in Feb 2011, I think we can elect private arbitration.

The amount we owe, according to what the court decided, is $1800.

Lawyer fee $1000 and some processing fee $300.

Total being $3000.

But Im not so sure what we could do to draft Motion to vacate judgment.

Please help us.

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also marked Defendant, No responsive pleading was filed

Right there is your answer. You still have to file, per the rules of procudure, replys. Just because there is another pre-trail or mediation coming up does not mean you can use that hearing in place of filing a response.

Sounds like you filed an improper motion to dismiss when you should have filed a response to their motion for summary judgment.

I'd ask for reconsideration. However, it appears, it is just a procedural error. That would not be grounds for an appeal. When you go pro-se the court, while they don't always, has the right to treat you as an atty with 20 years experience and hold you to that same level of knowledge.

Appeals are for errors of law, not the Judge using the discretion in a way that does not benefit you. Getting an appeal granted for a judge absuing their discretion is a tough chore and I don't see it flying with what you posted. I'd stay away from appeals and motions to vacate. Legally, it appears from your post, you don't have any ground to stand on.

The fact you filed a motion to dismiss their pleading does make it obvious your disputing their motion. However, it does not mean the court has to cut you any slack. I'd at least go with showing the court your intent was to dispute and your MTD proves that. Not a strong argument, but the best you have it appears.

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(I am so sorry that this could be a dumb question)

So are you saying that I am STILL obligated to file a reply to their MSJ even tho the judge granted it?

Since you are suggesting that Motion to vacate/appeal would be useless at this point, what kind of papers would you file to do "response to motion for summary judgement"?

We were advise that we are suppose to draft MTDSJ, never would have thought that this is the wrong document ! GAHHHHH~~~~ :(

So electing private arb would not work at this point, since the judgement was entered against us. correct?

p.s.

I guess at this point, we should look up how to negotitate payment terms. sigh.

thought we could try to win this one, since we lost the Chase CC that was CA, only if we would have found this forum sooner.

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Not a dumb question and sorry if I did not make it clearer. No you don't still file a reply. Unfortunately, the case is over. So yes, the time for arbitration or filing responses is over.

What I was saying is it appears you took the fact there was a pre-trial hearing and mediation coming up, that was the time you would make your arguments. However, the court, as a common practice, sets different dates (scheduling order) for different matters. That does not trump the rules of procedure for all other matters. It makes sense you would argue at those hearings. In fact, you probably would, but you would have filed a reply and then you would be using oral arguments to hammer home what you put in your reply or field questions from the Judge.

I've never heard of a motion to dismiss a motion for summary judgement. A motion to dismiss is for things like lack of jurisdiction, procedural errors, or defects in the complaint; such as, not attaching proper documents as required under a certain rule.

You somewhat do argue the case a little in a motion for summary judgement, but not really. If you have a defense like statute of limitations you file a motion to dismiss. However, even in that motion you don't really argue the facts of the case. You just argue that it does not really matter if the other side is right, they filed the case too late. So filing a motion to dismiss a motion for summary judgement really does not make a lot of sense. However, the law does not always make sense, so I could of course be wrong.

Long shot of course, but I would file a motion to reconsider the granting of the summary judgment motion. I would argue that by filing a motion to dismiss, while technically improper, defiantly showed your intent and your state of mind in regards to the debt/account. That was you dispute and wanted a trial. I would hammer you basically filed opposition to their motion. It might not have been the best or proper opposition but you did file opposition.

Then I would ask for the judgment to reconsider the ruling and set aside the order and allow you lets say 15 days to properly respond to their motion.

It's a long shot, but what do you have to lose. You already have a judgement against you. You might get lucky, the judge might be in a good mood, or heaven forbid the other side might not respond to your motion to reconsider.

Just a shot worth taking in my opinion. Back in the day, fighters still answered the bell against Mike Tyson even though they really had no shot at winning. Then some guy that was a huge underdog hit him just right one time and knocked him out. So throw your best punch at them. You never know, you might connect just right.

Edited by Coltfan1972

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