LD-50

Midland 2nd no show/AZ/Kaplan Law/Need help with motion to dismiss pls!

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My mediation was originally scheduled for end of June.  I showed up, Kaplan did not.  I filed a motion to dismiss w/prejudice.  They answered saying that w/prejudice was too harsh and cited some case.  They blamed some administrative person for a calender error.  The judge denied my motion and rescheduled the hearing for today.  Again, they no showed.  Can someone pls help me create a motion to dismiss that will actually be accepted?  Thank you!!!

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I should add that, when I was reviewing this morning's court calendar, I noticed they had another mediation first thing this morning.  Mine was called "2nd mediation."  The one this morning was titled "3rd Mediation."  I would be very unhappy if the judge did not dismiss this and scheduled yet a 3rd mediation.  What a waste of court resources/taxes/etc.  

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I sure can!  Attached....Dismiss.pdf

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FWIW, I did spell prejudice correctly in the original motion - I just quickly recreated it to post for you. 

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Did they attach anything to your complaint (original one)? Have they sent you anything that proves a prima facile case, like a bill of sale, assignment documents, statements? If not then when you draft your motion, cite the 2 no shows, and cite they have not provided you with any proof of the alleged debt. Cite you have taken off work x 2, and I know there is a bunch of case law around here for az. That will support the fact they need to include some sort of evidence the debt is yours.

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First I would file DEFENDANTS' MOTION TO COMPEL MEDIATION AND MOTION TO DISMISS

In you motion I would toss something like this in there.

Plaintiffs have violated the Court's discovery order in bad faith.

In order to ensure that a meaningful mediation session occurs that may streamline the litigation of this action, The Court should require a third mediation session. Additionally, Defendant believes

the Plaintiffs have violated the Court's discovery order in bad faith not once but twice and no lesser sanction is appropriate, the Court should grant Defendants' Motion To Dismiss as to the Plaintiff.

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@Shellieh98- 

The information on my case can be viewed in this thread - http://www.creditinfocenter.com/community/topic/321026-being-sued-by-midland-fundingwells-fargo-jerold-kaplan-law-phoenix-az-mediation-next-week/

 

However, the answer is yes, they did send some attachments in the original complaint:  

Affidavit of balance owed, WF Card Agreement, Bill of Sale, e-Record of account pursuant to bill of sale, Notice of new ownership and a statement from Dec 2010.

 

@racecar - I want to understand what you are saying because it sounds very official but I don't get it sorry!  It sounds like I am asking for a 3rd mediation and I don't want that - I want this dismissed.  Am I misunderstanding?  If so, can I include everything you noted above in the same motion?  

 

On another note - Plaintiff sent me interrogatories and they were stamped they were due 6/2.  I never did respond to them and don't know if I still can or need to.  I did submit an answer to the original complaint within the required time frame and have had no other requests from the court directly short of mediation requests which I've obviously complied with.

 

Thanks so much to both of you for your help!!!!!  I'm lost but want to get through this paying them nothing.

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I think I need to file this today.   When I checked out w/the court clerk yesterday she said, "You better go now.  The plaintiff called and is enroute."  Wonder if they filed some sort of motion while there?

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Hi, Did you file your discovery with the court and send them a copy?  You have 40 days after your answer to get it filed. If you don't they can file an MSJ and win. You may be able to get and extension on the admissions and rogs.  Vacation?  But crucial to get your discovery filed.

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I think I'm confused about Discovery vs. Plaintiff's request for interrogatories/production of documents.  Are they separate or the same?  I responded to something the court sent asking me to deny and admit some things and sent it to the court.  I did not respond to plaintiff's request for interrogatories/POD (a least not yet).

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They are different.  In Arizona 26.1 Discovery form must be filled on on pleading paper and filed with the court and sent to atty.  You have 40 days after you filed your answer to do this.  It is the second part of the process. Then the admissions and rogs they sent have to returned in 30 days. And you have this same time frame to send your if you choose to.  Did they send you dicovery? Would have been a packet of stuff. Affadavits CC statements and BOS???  This discovery is crucial so they dont file MSJ and say you did not do it. Then you lose.  Let me know

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Ld50 why didn't you send the Rogs back if they were due 6/2? That is discovery and will hurt your case. I would look around for answers to Rogs here, then answer and send asap

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The court has not asked for any discovery from me since I submitted my original answer.  With regard to the Plaintiff's discovery-type requests, I only noticed the 6/2 due date stamp a couple of days ago.  I hadn't looked closer at it because I figured I didn't really need to do anything until mediation was over.  Clearly that is incorrect?  They are basically asking for information to prove their case so of course I have nothing to give them.  Can't I simply file an effective motion to dismiss this and hope not to have to answer to them at all or should I be preparing my answer to them and my motion to dismiss simultaneously?  Or, how do you suggest I proceed?  Thanks!!

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The court has not asked for any discovery from me since I submitted my original answer.  

 

Discovery is between the litigants, and usually doesn't get filed with the court.

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Thanks, Spikey. So, is it really required that I had to have responded by 6/2?  Could a MSJ be applied to me for not responding to the plaintiff's request? Can I still submit it although past the plaintiff's assigned due date?  If not from the court, I'm not sure I'm required?  

 

Any suggestions for motion to dismiss verbiage that will help this go away?  I like what racecar had to say but its a bit confusing to me so I really need it spelled out.  I'm an analyst - I do numbers....I'm not good at law-speak.

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@LD-50 A JDB filing a MSJ is standard tactics for them regardless of your response to discovery or not. You can and likely should still respond to their discovery request. If they bring it up to the judge it makes you look bad. Hopefully it's not a request for admissions, missing a deadline on those means you admitted every request.

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@Spikey - I'm pretty sure it was not the admit/deny items.  It was more requests for documents.  I'll complete it letting them know I have nothing to help with their case and I'll in turn ask them for documents to prove the case beyond those they already sent.  I'll complete that this weekend thank you!

 

Any suggestions for effective wording for my motion to dismiss since they no-showed on me twice?  

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Hi Ld,  Okay I finally found my form and sorry if I confused you. Disclosure and Discovery are similar in AZ.  Okay did you file a Disclosure form with the court??? You have 40 days after your answer (the deny admit thing) to file defendant's disclosure.  AZ Rule 261 (B) (1)

You get the form at the court , fill it out  and they make a copy for you to send to the Plaintiff.

I am sorry to say you have to do this withing 40 days of filing your answer or they will get a SJ. Probably why they did not show up for mediation if it is outside of that 40 days. Let us know so we can try to help here

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I did submit and admit/deny type thing to the court along with my original answer.  I have received no other requests from the court.  Please help me with my motion to dismiss. I called the court after their 2nd no-show to see if they have filed anything and they had not.  I need help w/my motion to dismiss please.  :-)

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I really can't help you anymore until I know some more facts. What the date was that you filed your answer. And if withing 40 days of that you filed a disclosure statement. It reads like this. Instructions:  The Arizona Rules of Civil Procedure require that each party share with the other party all information known or available concerning the case.

 

The disclosure statement provides a format for you to make such disclosure. The disclosure statement MUST be completed and exchanged with all parties within 40 days of the filing of the answer or as ordered by the court.

You should also be prepared to provide the other party with a copy of your diclosure at the Pre-Trial conference.

 

During the course of this action any new information must also be exchanged. Failure to comply could result in any of the following consequesnces.1)  Dismissal of the case  2) A default judgement being entered  3)Your new information or exhibits excluded from being presented at trial or 4) Imposing sanctions

 

There are 5 sections to be filled out on the form

1) What are the facts supporting the claim

2)A description of the damages and copy of exhibits that show how you calculated the dollar value of the damages claimed

3)What law supports your claim

4)List of witnesses

5)List of documents and Other information

 

So again I ask did you fill a disclosure form out within the 40 days after you filed an answer?? The court doesnt mail it to you.They expect that you know the procedure.  My plaintiff put in their motion for summary judgement (which I beat down) that I had not filed a diclosure form. I included a court stamped copy with my motion to oppose SJ.

So unless we know you did that step filing a Motion to Dismiss is a moot point.

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Maybe this will help you a little more.  Google - Disclosure in arizona civil court. Look at the 7th one down to explain disclosure.

Also Az Rules of Civil Procedure to explain the journey

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Thank you so much!!!  

 

I just went through my file of paperwork and found blank disclosure statement paperwork that I never did complete.  It mentions the 40 day time frame from when I filed my original answer which was 4/19 so....I'm outside of that 40 days.  Rats!  Why didn't I find this site sooner!?  Now what?  And, thank you for your patience!!  

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Look at hot in az thread, and file it ASAP. They have ot filed an MSJ on you yet so maybe there is still time to save your case since they haven't squaked.

I know all of us just want the suit to "go away". We all feel like that, but there is no easy out. Slow and steady wins the race. Get your disclosure ready, send it and if they don't show for the next one, then maybe a mad will work

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