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**UPDATE** Plaintiff wants to settle - Help!! I need a motion to dismiss (California) based on SOL and abandonment of case by plaintiff's attorney!


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Okay everybody, I need help drafting my motion to dismiss in California based on the SOL and because the plaintiff's attorney backed out and returned the alleged account back to the plaintiff.

The plaintiff put the alleged account "back on the collection floor". Meanwhile the case is still ACTIVE in the court system. The attorney did not file a dismissal and the the plaintiff no longer having counsel won't do anything about it...believe me I tried.

Now I have to draft a motion to dismiss based on the SOL and the abandonment of the case. In Cali, you can file for abandonment, but I can only find CCP's for where the case is abandoned after the trial has started but prior to submission. Well, the case has been stayed to complete arbitration but the plaintiff, barred from filing a counter in Arb (because of the SOL), refuses to pay their portion of the fees and the Arb case manager said they won't allow me to get a default and in order to proceed with my complaint I would have to pay their portion.

Please help me to to find sample MTD's based on my circumstances. Thanks everybody.

**UPDATE**

Plaintiff's former attorney has actually contacted me and is asking how much I want. Now, I've got them on more than a dozen, well documented violations of the FDCPA, Rosenthal, and FCRA. Here's where I need some insight, he is telling me they won't settle if I'm stacking violations. What the heck does this mean?

HELP!!!!!!!

Wheels

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Here's case law to support a situation where the plaintiff refused to arbitrate after an order to do so.  In this case, the Plaintiff was the consumer, however, and the Defendant was McDonalds.  A bit of a reverse from what you're dealing with but I would imagine the premise is the same?

 

http://scholar.google.com/scholar_case?case=6766432032921188088

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I had a MTC Arb that was granted by the judge where he stayed the case pending the outcome of arbitration. The minute order clearly states there was no opposition from the plaintiff to continue to arbitration, in fact the attorney there said as much. I immediately complied with the order and filed my complaint with JAMS. I paid my fee, and the arbitration case manager (and myself) have been chasing the plaintiff's attorney to get them to pay theirs.

It wasn't until last week that I learned the attorney backed out and returned the case to the plaintiff. And thats ONLY because i called them. They did not notify me or the court that they removed themselves as counsel. I thought that was required. Either way, they didn't dismiss the case. The case remains open and active.

So I technically have:

Them filing on a time-barred debt they still cannot prove is even mine;

Them refusing to comply with a court order to arbitrate and;

The attorney backing out of the case, but not dismissing it.

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I had a MTC Arb that was granted by the judge where he stayed the case pending the outcome of arbitration. The minute order clearly states there was no opposition from the plaintiff to continue to arbitration, in fact the attorney there said as much. I immediately complied with the order and filed my complaint with JAMS. I paid my fee, and the arbitration case manager (and myself) have been chasing the plaintiff's attorney to get them to pay theirs.

It wasn't until last week that I learned the attorney backed out and returned the case to the plaintiff. And thats ONLY because i called them. They did not notify me or the court that they removed themselves as counsel. I thought that was required. Either way, they didn't dismiss the case. The case remains open and active.

So I technically have:

Them filing on a time-barred debt they still cannot prove is even mine;

Them refusing to comply with a court order to arbitrate and;

The attorney backing out of the case, but not dismissing it.

If you file that motion in the court you will waive jurisdiction. You will have to wait for the statutory times. Don't file that motion. The jurisdiction rests with JAMS. They will have to enter a default for you in JAMS.

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So, what do I do with the upcoming hearing, where we are to explain to the judge how our progress is going?

And since JAMS continues to send notifications to their now, non-representing counsel, the plaintiff isn't being notified of the JAMS fees except when I told them. Finally, I was told in no uncertain terms by the case manager that defaults are not given when nothing has commenced. That the only way to get that is to pay their $750 portion of the fee. There can be no default because technically, there is no arbitration yet since fees are due. Even if I pay the initial fees, what's to say I'm not in the same boat when it comes time to lay the other more substantial fees down on the table?

Now, I'm just confused. If I cannot secure a default against the plaintiff in JAMS (because remember its ONLY my complaint against them, not the other way around) what is the point of continuing? The SOL for the start of their violations, but by no means the last, ends in two months. Literally right after the next court date.

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So, what do I do with the upcoming hearing, where we are to explain to the judge how our progress is going?

And since JAMS continues to send notifications to their now, non-representing counsel, the plaintiff isn't being notified of the JAMS fees except when I told them. Finally, I was told in no uncertain terms by the case manager that defaults are not given when nothing has commenced. That the only way to get that is to pay their $750 portion of the fee. There can be no default because technically, there is no arbitration yet since fees are due. Even if I pay the initial fees, what's to say I'm not in the same boat when it comes time to lay the other more substantial fees down on the table?

Now, I'm just confused. If I cannot secure a default against the plaintiff in JAMS (because remember its ONLY my complaint against them, not the other way around) what is the point of continuing? The SOL for the start of their violations, but by no means the last, ends in two months. Literally right after the next court date.

 

First you need to consider that you have used the Arb strategy to the result it was intended.  That is to force the otherside to pay more to collect the debt than the debt is worth.  In other words you have won.  Now to a few of your questions-

 

1.  Attorneys can drop a case, but generally they need to notify the court via "Subustitution of Attorney" or "Motion to be Relieved as counsel".  You should check the court file to see if this has happened.  While they are suppose to serve this to you, they may not have if they did it.

 

2.  You state there is an upcoming hearing to check the status of the arb.  I would show up and give the judge all the information that you have except, that the attorney has abandon the case, unless you find they did file to be relieved from the case.  After the hearing you will get a good understanding of where the court stands and what is next.

 

Depending on what you find from the update hearing and assuming you want to inflict a little pain.  You might file a Motion for Sanctions against the Plaintiff for not following the court order and participating in the arbitration.  This would at minium get them to react and remove themselves as counsel, if not already done.  Or get them to file the dissmissal.

 

If I were in your spot I would work towards getting them to dismiss, I think it will be easier to get back your Court and JAMS fees.  Frankly this could be why they have walked away, hoping you file the dissmissal.  Not to mention what SeaDragon states is currently the court lacks jusrisdiction to rule on the case, until proven that the otherside is not participating.

 

Finally, if you truely have the attorney filing on time barred debt, you may want to seek out a FDCPA attorney to file against the attorney for bringing such an action.  This could be another reason they don't want any part of the case and sent if back to collectors....

 

Good Luck

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You might be able to file a motion to strike critical paragraphs of their Complaint with the Arbitrator leaving them without teeth. It doesn't sound like there is anyone that's going to oppose at this time and then just wait them out. Other than that I would just let the arbitrator handle it until it gets dismissed for lack of action. Check your California Civil Rules. Might take a year. Then file your cost bill. Meantime you can take a look at the CIC forums 623 Lawsuit info and initiate one of those for a cash settlement from the Original Creditor. 

 

The sanctions thing is best but might call to JDB's attention they need to hire an new attorney to conclude this action and you wind up with a gung ho opponent that causes all kinds of grief and extra paperwork. It's all about money and you have cost them more than it's worth and are sitting in the proverbial "Catbirds Seat". Just have fun attend all the Court sessions, file the necessary paperwork to keep your side active and wait. You apparently are out of SOL so no JDB (other then Asset Acceptance) in their right mind is going to sue you again. 

 

HP

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Thanks for the responses!

Now, to answer your questions, as best I can. There are no filings showing they removed themselves as counsel. I only found this information out by calling them. I then called the actual plaintiff, and they also said they are no longer represented by them. The attorney attempted to dismiss it, but filled the form out completely wrong. They were notified of that months ago but never corrected it. They actually attempted to file that months after they returned the account back to the plaintiff. So as it stands, they are not removed as counsel, and the case is still active.

The moment I saw they had filed a case, but prior to being served, I called the attorney and notified them that they filed past the SOL, and asked if they maybe wanted to avoid my responding in kind by immediately nonsuiting the case before it gets too far. They said they would not dismiss it, so I got the information as to who was going to be serving me so that I can schedule a time for them to do so.

I have absolute proof they filed beyond the SOL, which is why I filed an arbitration complaint against them. They have NOT filed anything in arbitration, and I'm assuming it's because they realized at that point that the case they filed was beyond the SOL and I knew it (which is what my Arb complaint states among other things).

Once served, I filed a motion to compel arbitration, because the date they list in the complaint as a last payment is dead wrong according to the plaintiff's own documents, to which I have absolute proof of...from the plaintiff themselves! I can 100% prove its beyond the SOL, and that the attorney put an incorrect date in the complaint.

So, to be clear, I have NO counter complaint against them as I missed my opportunity to file one. I filed my complaint with JAMS instead (it's cheaper and they agreed to it). They have filed NO counter complaint for the debt with JAMS.

I cannot get costs back as I filed a fee waiver. I can ask for my JAMS fees though. So I guess I'm confused about why jurisdiction is a problem since it's their complaint, not mine. If I'm only trying to dismiss their complaint, how does that affect me? Sorry, I'm trying to understand.

Finally, when would I got about filing that motion for sanctions? I'm all for that.

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"I cannot get costs back as I filed a fee waiver. I can ask for my JAMS fees though. So I guess I'm confused about why jurisdiction is a problem since it's their complaint, not mine. If I'm only trying to dismiss their complaint, how does that affect me? Sorry, I'm trying to understand.

Finally, when would I got about filing that motion for sanctions? I'm all for that.
"

 

When filed your MTC arb, you asked the court to step asisde and let the matter be resolved by the contract/card agreement between the parties.  When the court grants this request, relinquish some jurisdiction of the complaint and process to the Arbitration provider.

 

You said you have a status hearing upcoming.  The court is going to want to know what is going on, because the case is still on the courts list to monitor.  When you show up and tell the court you have done everything, but that the otherside will not participate.  The court will have something to say.  I don't know what, but they will want to clear the case.

 

At this point you will have a better idea of how to proceed.  Generally, the next step would be Motion for Sanctions against the Plaintiff for not following the order of the court.

 

It maybe that the court Dismisses the case on its own.

 

Judge may ask how you would like to proceed?  You just tell him/her what you want via verbal motion.

 

 

Hard to tell what will happen.

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I don't see why you should not proceed with your complaint in arbitration.  If the debt collector does not show, you should be able to put on your case and you should win.  Then you move for confirmation in the original court case.

 

I would not worry about the lawyer withdrawing or giving back the debt to plaintiff.  If you just heard this on the phone I would not mention it.  If plaintiff's attorney wants to withdraw, it should do so officially by notifying the arbitrator in writing or filing a request in the court case.

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"the plaintiff's attorney backed out and returned the alleged account back to the plaintiff."

 

 

  LOL, I would file motion after motion after motion if there was no one to oppose said motions.  Just cram them all down the plaintiff's throats. 

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"the plaintiff's attorney backed out and returned the alleged account back to the plaintiff."

 

 

  LOL, I would file motion after motion after motion if there was no one to oppose said motions.  Just cram them all down the plaintiff's throats. 

 

Based on what theory? ....... and to what forum? The court has already relinquished partial jurisdiction ........ and the arbitration forum won't take any action until the respondent pays it's fees.

 

I'm with calawyer .......

 

I would just sit on it until one of the forums asks for an update; you can then submit your arguments as to what happened and why you should be awarded either sanctions from the court or a dismissal from the arbitration forum.

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Sorry, I mis-interpreted your intent behind filing with JAMS.

 

If JAMS will absolutely not proceed without the respondent paying the fees; I would say that your complaint is going nowhere in that forum unless you do as Seadragon suggested and pay the fees for them.

 

The status hearing in court should be interesting; as Skippy pointed out, it's hard to tell what the judge will do but more than likely a dismissal is in order.

I wonder if it's possible to ask for sanctions not only for ignoring the courts order to arbitrate but, for not following civil procedure when they withdrew as council and not notifying you properly (I am unfamiliar with CA's rules).

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If it was me, I would be filing a motion to further compel arbitration with sanctions up to and including termination. Include a $750 sanctions amount so you have a court order that allows you to get the filing fee from plaintiff and pay it. Explain to the court that it appears the only way you are going to get justice is if the court forces them to pay the fee through court order.I would stay 100% focused on the arbitration order and not file a MTD, but rather seek dismissal through sanctions. I would want to file the motion now so I preserve the demand for the payment of the JAMS fees.

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At the status conference, you should ask the Judge to dismiss plaintiff's claims with prejudice as it has failed to comply with a court order to proceed with those claims in arbitration.  Plaintiff probably won't attend the hearing either which will make it easier for the Court to give you relief.  You might want to file something before the hearing telling the Court that plaintiff refuses to proceed with arbitration.  Attach any correspondence you have received from JAMS or ask them to send you a letter so you can report back to the Court.

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This update that was added to the first post:

**UPDATE**

Plaintiff's former attorney has contacted me and is asking how much I want to make them go away. Now, I've got them on more than a dozen, well documented violations of the FDCPA, Rosenthal, and FCRA. Here's where I need some insight, he is telling me they won't settle if I'm stacking violations. What the heck does this mean?

HELP!!!!!!!

Wheels

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Here's where I need some insight, he is telling me they won't settle if I'm stacking violations. What the heck does this mean?

HELP!!!!!!!

 

I was hoping someone more knowledgeable would answer this question for you.  My guess is that he is talking about either the three types of violations (FDCPA, Rosenthal, FCRA) you mentioned or just the twelve or so total. In other words he doesn't want to pay you 12k for all of the violations or even 3K for the three different types. 

 

I'm not sure why it matters because they will deny any and everything in the settlement agreement anyway. Just make sure you get all litigation dropped, the debt cancelled, no 1099 issued and all trade lines deleted. The money part is just whatever you guys can agree on. If you get all of your expenses paid plus a couple of thousand or so you should be in good shape. Hit him high and see what he offers.  xboxingx

 

Congrats & Good Luck! 

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