Midland Funding, Pre-Trial Set For Friday. What to expect?

[SanTanStan]

1.-Midland Funding

2-Phoenix, Arizona

3-I'm being sued over an alleged Chase Bank account from 2007. Midland has provided the standard robo-signed affidavit and generic account condition along with an account number, I've yet to see a single statement or anything of that kind.

3-I've submitted my answer to the complaint utilizing a variety of affirmative defenses, I also have sent out my own list of admissions/interrogatories and have received theirs.

4. I am fully expecting them to go for MSJ at some point, I will counter since discovery is still ongoing.

5. Pre-trial is soon(Friday) I simply want to know what to expect and what I should bring with me. I don't plan on involving any witnesses or introducing any new documents, especially since Midland has failed to make their case whatsoever.

EDIT-Update, went to Pre-Trial, neither Midland nor their attorneys showed up, I filed Motion to Dismiss, Midland responded by saying that they "miscalendered" the Pre-Trial Conference and that it shouldn't be held against them.

They are also delaying every single motion and response they send to me, their actual motion will state that they mailed something on so and so a date and they sign on to it, but the actual date of sending will about 10-15 days later.

Edited November 23, 2012 by SanTanStan
Update

[1stStep]

Have you requested discovery and received it? If not, you will need to do so at the pre-trial.

[SanTanStan]

Have you requested discovery and received it? If not, you will need to do so at the pre-trial.

I have, I sent them my admissions, interrogatories and discovery request all by certified mail. I have not received anything back from them. I am crafting my responses to their admissions/interrogatories/discovery request currently as well.

[Beergoggles]

pre trial is just basically a settlement meeting, no judge, most likely you and mediator in a room and lawyer on phone. Tell Ol Mr. Esquivel and Dias I said hello and thanks for the check! Oh you did not hear? Yep I (we) whooped them twice simultaneously

http://www.creditinfocenter.com/forums/there-lawyer-house/311778-midland-arizona.html

[Beergoggles]

http://www.creditinfocenter.com/forums/there-lawyer-house/312400-i-need-help-answering-motion-summary-judgement-az.html

[Beergoggles]

You will get nothing from them in discovery. You will most likely get some statements with the MSJ that they WILL file soon.

Here is whats going to happen. When you mail anything to the lawyers mail certified mail return receipt requested (CMRRR) you will oppose anything they throw at you, you will read the Arizona rules of civil procedure you will read the Arizona rules of evidence

your sued and receive a summons

you file an answer

they will probably file for default because your waiting for the last minute ( like I did)

You oppose default and make them look like the idiots they are

You and they will file disclosure (court has a form for this)

Most likely mediation (settlement meeting no judge) will be scheduled they will file a motion to appear by phone

You will oppose any motions to appear by telephone

You start working on your discovery needs ( no need to file with court just send to lawyer CMRRR)

You might or might not file a motion to preclude their affidavit ( I did it was granted because they failed to respond)

They WILL file a motion for summary judgement

You WILL oppose it and get advice here about how to oppose it

They hopefully are denied on their MSJ

They will call you to try to settle ( I said sure just dismiss and we can all have a nice day)

Trial will be set ( maybe at mediation but they will still file an MSJ)

They will continue to try to settle with you, you continue to tell them to take a flying leap through a rolling donut

Trail date shows up they will try one more time to settle, you will both be in court and lawyer will try to have his witness appear by phone and hopefully the judge denies

Lawyer will dismiss

You WILL object and state it must be with prejudice and with costs. Or you have a trial and most likely you will win a judgement

Lawyer will sulk his head down and agree to your terms

You will go out and have at least 5 beers or drink of your choice

You will sleep good

You will come back here and thank all of us and we will post all kinds of yahoo's and silly little guys congratulating you.

WHEW how was that?

Edited November 7, 2012 by Beergoggles

[SanTanStan]

Okay, so I made a mistake, the pre-trial conference was actually scheduled for today, I happened to double-check the court website and got my butt over there, hauled a$$ through the security checks up front, ran up to the window, got my courtroom, hustled over there, got inside, sat down and then sat...and waited as there was another case, another JDB dispute going on before me. I looked around the room, saw a couple other people waiting for their cases but nobody that looked like an attorney. The judge called me up and I walked up to the front, he told me to take a seat and that he gives debt collector's the option to call in to save on legal fees in case the defendant loses, he said that we would wait for them to call in. Two more people went up and discussed their cases, and nothing happened. The judge got up, left, came back a few minutes later, started recording on a device near him and announced the time and that the plaintiff had failed to call in or show up. He said that I could motion to dismiss if I so chose to and with that I thanked him, got up and walked out of the courtroom.

So far so good I guess, all went better than expected, would appreciate help on some of the specifics to include in the MTD from anyone willing.

[Beergoggles]

Defendant motions to dismiss as plaintiff failed to appear to court ordered pre trial conference.

16 A.R.S. Rules of Civil Procedure, Rule 16(f)

Arizona Revised Statutes Annotated Currentness

Rules of Civil Procedure for the Superior Courts of Arizona

Full text of all sections at this level III. Pleadings and Motions; Pretrial Procedures

Full text of all sections at this level Rule 16. Pre-Trial Conferences; Scheduling; Management

Current selectionRule 16(f). Sanctions

If a party or attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith in a scheduling or pretrial conference or in the preparation of the joint pretrial statement, the judge, upon motion or the judge's own initiative, shall, except upon a showing of good cause, make such orders with regard to such conduct as are just, including, among others, any of the orders provided in Rule 37((2)(, ©, or (D). In lieu of or in addition to any other sanction, the judge shall require the party, or the attorney representing the party, or both, to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorneys' fees, or payment of an assessment to the clerk of the court, or both, unless the judge finds that the noncompliance was substantially justified, or that other circumstances make an award of expenses unjust.

CREDIT(S)

Amended Aug. 7, 1984, effective Nov. 1, 1984; Sept. 15, 1987, effective Nov. 15, 1987; Dec. 20, 1991, effective July 1, 1992; Oct. 10, 2000, effective Dec. 1, 2000.

COMMITTEE COMMENT TO 1991 AMENDMENT

This rule expands the sanctions available to the court for non-compliance with not only the letter but the spirit of the rule. It makes available to the court any and all of the sanctions available under the rules. The sanctions are mandatory upon the finding by the court that Rule 16 has been breached. The rule also allows the court to enter an order requiring that all or a portion of the sanction be paid to the clerk of the court. It is contemplated that where the parties have incurred expenses and the sanction is intended to reimburse for those expenses or attorneys' fees, that portion of the payment at least will be ordered paid directly to the party incurring the expense. Where all or a portion of the sanction, however, is not intended to reimburse for an expense, such amount can be ordered paid to the clerk of the court. One of the purposes in such an order would be to see that, in fact, the sanction is paid rather than being waived by opposing counsel.

It should be noted that the court may be required, depending upon the circumstances, to hold an evidentiary hearing to determine the appropriate nature of the sanctions and whether the sanctions should be entered against the party, counsel, or both. See Robinson v. Higuera, 157 Ariz. 622, 760 P.2d 622 (App.1988)

COURT COMMENT TO 1991 AMENDMENT

The above rule change was part of a comprehensive set of rule revisions proposed by the Special Bar Committee to Study Civil Litigation Abuse, Cost and Delay, which was specifically charged in March, 1990 with the task of proposing rules to reduce discovery abuse and to make the judicial system in Arizona more efficient, expeditious, and accessible to the people.

For more complete background information on the rule changes proposed by the Committee, see Court Comment to Rule 26.1(a).

STATE BAR COMMITTEE NOTE

1984 Amendment

Rule 16(f) incorporates the sanctions which the court may now impose for failure to provide or permit discovery under Rule 37((2). See, e.g., B & R Materials, Inc. v. U.S. Fidelity and Guaranty Co., 132 Ariz. 122, 644 P.2d 276 (App. 1982). In the four situations enumerated, sanctions may be imposed, either upon the court's initiative or upon a party's motion. In addition, the court shall require the payment of expenses, including attorneys' fees, by the uncooperative party, the attorney, or both, unless circumstances warrant otherwise. Compare, Golleher v. Horton, 119 Ariz. 604, 583 P.2d 260 (App. 1978) and Zakroff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968). These sanctions are reviewable under the abuse-of-discretion standard. See, Sears Roebuck and Co. v. Walker, 127 Ariz. 432, 621 P.2d 938 (App. 1980).

HISTORICAL NOTES

The August 7, 1984 order approving the amendments of Rule 16 provides that the order is to be applicable to all cases set for trial on or after November 1, 1984.

16 A. R. S. Rules Civ. Proc., Rule 16(f), AZ ST RCP Rule 16(f)

Current with amendments received through 10/1/12

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

[SanTanStan]

Defendant motions to dismiss as plaintiff failed to appear to court ordered pre trial conference.

16 A.R.S. Rules of Civil Procedure, Rule 16(f)

Arizona Revised Statutes Annotated Currentness

Rules of Civil Procedure for the Superior Courts of Arizona

Full text of all sections at this level III. Pleadings and Motions; Pretrial Procedures

Full text of all sections at this level Rule 16. Pre-Trial Conferences; Scheduling; Management

Current selectionRule 16(f). Sanctions

If a party or attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith in a scheduling or pretrial conference or in the preparation of the joint pretrial statement, the judge, upon motion or the judge's own initiative, shall, except upon a showing of good cause, make such orders with regard to such conduct as are just, including, among others, any of the orders provided in Rule 37((2)(, ©, or (D). In lieu of or in addition to any other sanction, the judge shall require the party, or the attorney representing the party, or both, to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorneys' fees, or payment of an assessment to the clerk of the court, or both, unless the judge finds that the noncompliance was substantially justified, or that other circumstances make an award of expenses unjust.

CREDIT(S)

Amended Aug. 7, 1984, effective Nov. 1, 1984; Sept. 15, 1987, effective Nov. 15, 1987; Dec. 20, 1991, effective July 1, 1992; Oct. 10, 2000, effective Dec. 1, 2000.

COMMITTEE COMMENT TO 1991 AMENDMENT

This rule expands the sanctions available to the court for non-compliance with not only the letter but the spirit of the rule. It makes available to the court any and all of the sanctions available under the rules. The sanctions are mandatory upon the finding by the court that Rule 16 has been breached. The rule also allows the court to enter an order requiring that all or a portion of the sanction be paid to the clerk of the court. It is contemplated that where the parties have incurred expenses and the sanction is intended to reimburse for those expenses or attorneys' fees, that portion of the payment at least will be ordered paid directly to the party incurring the expense. Where all or a portion of the sanction, however, is not intended to reimburse for an expense, such amount can be ordered paid to the clerk of the court. One of the purposes in such an order would be to see that, in fact, the sanction is paid rather than being waived by opposing counsel.

It should be noted that the court may be required, depending upon the circumstances, to hold an evidentiary hearing to determine the appropriate nature of the sanctions and whether the sanctions should be entered against the party, counsel, or both. See Robinson v. Higuera, 157 Ariz. 622, 760 P.2d 622 (App.1988)

COURT COMMENT TO 1991 AMENDMENT

The above rule change was part of a comprehensive set of rule revisions proposed by the Special Bar Committee to Study Civil Litigation Abuse, Cost and Delay, which was specifically charged in March, 1990 with the task of proposing rules to reduce discovery abuse and to make the judicial system in Arizona more efficient, expeditious, and accessible to the people.

For more complete background information on the rule changes proposed by the Committee, see Court Comment to Rule 26.1(a).

STATE BAR COMMITTEE NOTE

1984 Amendment

Rule 16(f) incorporates the sanctions which the court may now impose for failure to provide or permit discovery under Rule 37((2). See, e.g., B & R Materials, Inc. v. U.S. Fidelity and Guaranty Co., 132 Ariz. 122, 644 P.2d 276 (App. 1982). In the four situations enumerated, sanctions may be imposed, either upon the court's initiative or upon a party's motion. In addition, the court shall require the payment of expenses, including attorneys' fees, by the uncooperative party, the attorney, or both, unless circumstances warrant otherwise. Compare, Golleher v. Horton, 119 Ariz. 604, 583 P.2d 260 (App. 1978) and Zakroff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968). These sanctions are reviewable under the abuse-of-discretion standard. See, Sears Roebuck and Co. v. Walker, 127 Ariz. 432, 621 P.2d 938 (App. 1980).

HISTORICAL NOTES

The August 7, 1984 order approving the amendments of Rule 16 provides that the order is to be applicable to all cases set for trial on or after November 1, 1984.

16 A. R. S. Rules Civ. Proc., Rule 16(f), AZ ST RCP Rule 16(f)

Current with amendments received through 10/1/12

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.

END OF DOCUMENT

Lost this thread, started another, that vanished so I'm coming back here to post some updates.

I filed my motion to dismiss the day after pre-trial, only today did I get the response back from Midland and their excuse is that they "miscalendered" the Pre-trial date which I find completely ridiculous. Essentially they are saying "whoops, we forgot."

Additionally I noticed that they are back-dating everything they send to me.

Their own response to dismissal for example states that it was mailed to me on NOVEMBER 13TH and signed above by the attorney......yet when I look at the envelope that the motion came in, the send date wasn't until NOVEMBER 21st. They did the same with interrogatories and other documents, I'm going to verify the dates that the court received the particular documents as it seems that they are almost willfully try to delay my ability to respond to various motions. Its a good thing I've been collecting every single mailing envelope they've sent me.

How proper is what they are doing? On the Motion to Dismiss it reads "Copy of the foregoing mailed November 13, 2012"

Signed, so and so random Midland attorney.

Yet on the envelope that the document came in, the ACTUAL send date IS 2 days ago. There's no way in the world it takes a letter 10+ days to move from one part of Phoenix to the other.

Edited November 23, 2012 by SanTanStan

[1stStep]

Submit a motion to dismiss based on that law quoted... get it on calendar for a hearing.

[Beergoggles]

I saved all my envelopes as well, Take 1stSteps advice.

[SanTanStan]

I saved all my envelopes as well, Take 1stSteps advice.

Submit another motion to dismiss? I already cited the law in my first motion Here is the text of that motion.

"Comes Now, the Defendant, appearing Pro Se, and respectfully requests that this Honorable Court dismisses with prejudice the complaint against the Defendant by Plaintiff, Midland Funding LLC, and shows in support:

1. Plaintiff filed suit on the so and so day of 2012.

2. Plaintiff and/or its agents failed to appear for a court-ordered pretrial conference on the 7th of November, 2012 at 4:15 PM despite proper notice and knowledge of that date and time.

3. Pursuant to Rule 16(f), Arizona Rules of Civil Procedure, Defendant requests a dismissal of the suit.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendant prays this Honorable Court dismisses the suit with prejudice, that Plaintiff take nothing herein, that Defendant be awarded the relief prayed for hereinabove, and for such other and further relief, special or general, legal or equitable, as may be shown that Defendant is justly entitled to receive.

"

[Beergoggles]

no do not submit another just wait for the judge to rule on this one.

[davephx]

It seems Midland is doing a lot of dirty tricks like on another thread in AZ not sending MSJ until too late to reply.

In Justice Courts seems some have mediation with a clerk not a judge and in a small conference room as Beergoggles indicated.

But in other Justice Courts its called a pretrial like yours with an actual judge and in a courtroom.

Usually the Court seems easy on "oops we goofed" on date of appearance etc and may just reschedule the hearing.

A motion to dismiss requires a separate Memorandum of law and points of authority.

But if the judge has a prior history with Midland or is "friendly" he can dismiss on own but is rare in my understanding if just accidentally didn't show up and has reasonable excuse.

[BrunoTheJDBkiller]

A motion to dismiss requires a separate Memorandum of law and points of authority.

Only if the grounds for the motion attack the legal sufficiency of the pleading. This is strictly procedural, all you need is to cite the rule they violated. Any judge will be able to decide this.

[Beergoggles]

if I recall the judge told the OP that they could file a motion to dismiss if they wished to.

[SanTanStan]

It seems Midland is doing a lot of dirty tricks like on another thread in AZ not sending MSJ until too late to reply.

In Justice Courts seems some have mediation with a clerk not a judge and in a small conference room as Beergoggles indicated.

But in other Justice Courts its called a pretrial like yours with an actual judge and in a courtroom.

Usually the Court seems easy on "oops we goofed" on date of appearance etc and may just reschedule the hearing.

A motion to dismiss requires a separate Memorandum of law and points of authority.

But if the judge has a prior history with Midland or is "friendly" he can dismiss on own but is rare in my understanding if just accidentally didn't show up and has reasonable excuse.

The judge didn't seem all too amused when they failed to appear or call-in, he explained that one of the reasons the JDB's have the option of callling it is to minimize the resulting legal fees should the defendant lose.

However after waiting about 20 minutes, he told me pointedly that I could file a motion to dismiss the case if I wanted to, he indicated that he could not offer me any sort of legal advice or consult but his tone especially made it seem like it would be a good idea to do so, stating that the plaintiff needed to have a good excuse for skipping out on pre-trial, such as being deathly ill, being in a car accident or some other serious situation.

We'll see how well Midland's "oops....we is was miscalendered it" response holds up.

[SFinAZ]

We'll see how well Midland's "oops....we is was miscalendered it" response holds up.

Seems like the judge is on your side, I hope you had some documentation about the "mis-calendar" event and attached that with your dismissal.

Good luck!

[SanTanStan]

After waiting about a month to hear back from the court, my Motion to Dismiss was denied, by a different judge, by a Justice of the Peace pro tempore.  

 

 

No reason was given.   I'm not really all that shocked, but somehow I feel as if the court wouldn't have been as lenient had I been the one who blew off the Pre-Trial and then sent a letter a few weeks later basically stating "oops, I forgot."

 

 

  At this point I'm guessing the Pre-Trial Conference will be rescheduled and at some point Midland will look for a MSJ.