Sued by JDB Cavalry in Arizona - lost on Plaintiff's MSJ

[MrBookworm 2]

I would not file a Motion to Reconsider, because it will give the trial judge a chance to bolster the judge's reasoning with a written ruling, which he doesn't have right now.

 

If the judge is so confident that he's right that he doesn't need to bother with explaining to an Arizona citizen and taxpayer why he ruled this way, well, let's just see what the appellate court says about that. 

 

I can see your point of not doing the reconsideration. Usually though, the judge doesn't explain anything when they deny the reconsideration, they just state that they looked at it and the motion is denied.

[Harry Seaward 1,356]

I would still file a Motion to Reconsider as well as the Notice of Appeal. At the very least the judge gets to see that you are appealing and makes him actually deny your reconsider motion too.

Someone else here filled a motion to reconsider or a motion to set aside judgment or something and then filled their notice of appeal. The trial judge ruled the motion was moot in light of the pending appeal, which makes sense to me.

[Az Piano Lady 14 90]

Once the judge has made a ruling you can file a motion for and explanation of ruling. In fact the clerks have that form. Once you file an appeal , NOPE their is no explanation. So I would say for a proper appeal to ask for a definative answer on the ruling.

Also if you are the mood to help, They served me today with MSJ. I know you are busy but I would appreciate some help. Thanks Harry

[Harry Seaward 1,356]

I don't want the judge to issue an explanation. The less info from the judge to the appellate court the better it is for me.

[Seadragon 840]

I would  respectfully disagree. The appellate is going to make presumptions that the trial court did all the right things unless the record shows he did a wrong thing. Getting the decision and findings will help to show all the bad things the judge did.

[Clydesmom 1,218]

I would  respectfully disagree. The appellate is going to make presumptions that the trial court did all the right things unless the record shows he did a wrong thing. Getting the decision and findings will help to show all the bad things the judge did.

 

I disagree with this.  The appellate court cannot presume what the Judge or litigants were thinking.  They can only go by what the trial transcript shows.  i.e. the facts in front of them.  If the Judge is given the opportunity to lay out their verdict with support that weakens an appeal.  If there is too much guess work the appellate court almost has no choice but to issue an opinion with the factual law to back it up.

[UCL 58]

I disagree with this.  The appellate court cannot presume what the Judge or litigants were thinking.  They can only go by what the trial transcript shows.  i.e. the facts in front of them.  If the Judge is given the opportunity to lay out their verdict with support that weakens an appeal.  If there is too much guess work the appellate court almost has no choice but to issue an opinion with the factual law to back it up.

 

Not to beat on a dead horse, given that we are all trying to help Harry make HIS decision on what to do: but this is exactly my logic as well. It is harder to defend the ruling of a trial court to an appellate court when the trial court has failed to explain itself. Harry was deprived of a trial here, in violation of his constitutional right to due process. The court system is designed to serve the public through trials. Not through shady motion practice. The burden will be very high on the plaintiff here to prove that the judgment should be affirmed. That burden will be slightly lessened if the trial court is given a chance to try and explain itself (and it takes that chance).

[Harry Seaward 1,356]

Not to beat on a dead horse, given that we are all trying to help Harry make HIS decision on what to do:

I don't view anythi. that has been said as trying to change my mind or convince me to do what they think is right. I see it only as varying opinions that are being left here to posterity. Hopefully some part of it will benefit some other lost soul looking for information.

[Credator 297]

Probably well aware of the following but it is new to me:

 

http://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdf

Recordings:
Justices of the peace and municipal court judges are responsible for informing the parties of their right to have their hearing or trial recorded.

Trial de novo
If the lower court’s record is not sufficient to allow the Superior Court to make a determination, the Superior Court may order that a new trial be held. This usually happens if the lower court failed to advise the parties of their right to have the proceedings recorded or if an audible recording was not made when properly requested.

[Harry Seaward 1,356]

@Credator

Probably well aware of the following but it is new to me:

 

http://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdf

Recordings:
Justices of the peace and municipal court judges are responsible for informing the parties of their right to have their hearing or trial recorded.

Trial de novo
If the lower court’s record is not sufficient to allow the Superior Court to make a determination, the Superior Court may order that a new trial be held. This usually happens if the lower court failed to advise the parties of their right to have the proceedings recorded or if an audible recording was not made when properly requested.

I also came across this not too long ago and was encouraged by it.  It removes the "welp, sorry, no record so can't hear your appeal" type of response from the appellate courts.

[Harry Seaward 1,356]

So in the mail today I got Cavalry's statement of costs.  I don't want to provide too much commentary about it, but I did want to post some of the details.

 

There were about 40 pages worth of attorney work logs with 6 or 7 entries on each page.  The billing rates ranged from $175 to $300/hr and the time spent on each entry ranged from 0.2 hours to 1.5 or so hours.  The total dollar amount for the time spent was $11,700.  The amount Cavalry is contractually obligated to pay is capped at $1,500.  The court won't award any amounts not spent by a party, and since the attorney is not a party, he will never recover the outstanding $10,200.  That's before appeal, although here's not much to an appeal, so I don't expect there to be more than $500-$700 worth of additional time.

[UCL 58]

Did they specifically ask for attorney fees in their complaint?

Assuming they did, you need to respond and object on a few grounds. First, ask the court to reject attorney fees completely. Cite your economic hardship as a substantial factor. The Arizona Supreme Court has specifically rejected the argument that there should be a presumption of granting attorney fees, and has stated that "the relative economic positions of the parties" is a proper factor to consider in rejecting such a request. Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985).

Do they cite language in the contract as the basis for fees? If they do, you might lose the above argument (which is not to say you shouldn't make it). But step two is to challenge the amount of money they incurred on every imaginable ground. $175 to $300 an hour for some punk-a$$ collection law dirtbags? Yeah right. How about $125? It might be helpful here for you to try and secure evidence of what the actual prevailing rate is for high volume collection litigation in Phoenix. Go after billing entries that aren't clear, that don't properly describe the task performed, or that are excessive. Block billing entries (a whole bunch of tasks bunched into one entry) are not acceptable.

Also argue that the fee award should be commensurate with the underlying principal amount.

On appeal, the appellate court will be sympathetic to your economic position if it has any discretion over the fee question. Assuming the trial court is not also. I wish you could threaten the plaintiff with the risk of winning a fee award on appeal, but you're pro se so you can't.

I've suggested to you some very specific things here. That requires me to state the important disclaimer that my comments here are not a substitute for true legal advice and that no attorney-client relationship has been formed.

I know this is stressful for you. I'm sorry you're going through this but you have a lot of good support here and a strong argument on appeal, so don't be intimidated and stay strong.

[UCL 58]

I think you've seen this before:

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/122012/m5558982.pdf

That's a good outline for what you want to argue, with the major exception that the court didn't have to analyze the business records exception of the hearsay rule so it didn't do so.

[UCL 58]

Hold our horses.

You say that Cavalry submitted a "statement of costs" that includes documentation of attorney fees. Look at Justice Court RCP 139(d) and 139(e). They have failed to comply and are conflating attorney fees with costs, thereby depriving you of the ability to file a responsive brief challenging the fee request.

[Harry Seaward 1,356]

@UCL

Did they specifically ask for attorney fees in their complaint?

Assuming they did, you need to respond and object on a few grounds. First, ask the court to reject attorney fees completely. Cite your economic hardship as a substantial factor. The Arizona Supreme Court has specifically rejected the argument that there should be a presumption of granting attorney fees, and has stated that "the relative economic positions of the parties" is a proper factor to consider in rejecting such a request. Associated Indem. Corp. v. Warner, 143 Ariz. 567, 571, 694 P.2d 1181, 1185 (1985).

Do they cite language in the contract as the basis for fees? If they do, you might lose the above argument (which is not to say you shouldn't make it). But step two is to challenge the amount of money they incurred on every imaginable ground. $175 to $300 an hour for some punk-a$$ collection law dirtbags? Yeah right. How about $125? It might be helpful here for you to try and secure evidence of what the actual prevailing rate is for high volume collection litigation in Phoenix. Go after billing entries that aren't clear, that don't properly describe the task performed, or that are excessive. Block billing entries (a whole bunch of tasks bunched into one entry) are not acceptable.

Also argue that the fee award should be commensurate with the underlying principal amount.

On appeal, the appellate court will be sympathetic to your economic position if it has any discretion over the fee question. Assuming the trial court is not also. I wish you could threaten the plaintiff with the risk of winning a fee award on appeal, but you're pro se so you can't.

I've suggested to you some very specific things here. That requires me to state the important disclaimer that my comments here are not a substitute for true legal advice and that no attorney-client relationship has been formed.

I know this is stressful for you. I'm sorry you're going through this but you have a lot of good support here and a strong argument on appeal, so don't be intimidated and stay strong.

 

Before I start down this path, I want to make sure you understood what I was saying previously.  While the lawyer's total time amounted to $11,700, they were only able to bill Cavalry for $1,500 of it "based on contingent rates agreed on by the client [Cavalry]."  In their judgment they are only asking for $1,500 in legal fees.

 

 

I think you've seen this before:

http://www.courtminutes.maricopa.gov/docs/Lower%20Court/122012/m5558982.pdf

That's a good outline for what you want to argue, with the major exception that the court didn't have to analyze the business records exception of the hearsay rule so it didn't do so.

 

I hope I get that judge on my appeal!

 

 

Hold our horses.

You say that Cavalry submitted a "statement of costs" that includes documentation of attorney fees. Look at Justice Court RCP 139(d) and 139(e). They have failed to comply and are conflating attorney fees with costs, thereby depriving you of the ability to file a responsive brief challenging the fee request.

 

I'll check into this now....

[Harry Seaward 1,356]

I can't find anything in the agreement re: legal fees.  Maybe someone else can see it.

 

 

ARBITRATION AND LITIGATION
This Arbitration and Litigation provision
applies to you unless you were given the
opportunity to reject the Arbitration and Litigation
provisions and you did so reject them in the
40
manner and ,timeframe required. If you did reject
effectively such a provision, you agreed that any
litigation brought by you against us regarding this
account or this Agreement shall be brought in a
court located in the State of Delaware.
Any claim or dispute ("Claim") by either you or
us against the other, or against the employees,
agents or assigns of the other, arising from or
relating in any way to this Agreement or any prior
Agreement or your account (whether under a
statute, in contract, tort, or otherwise and
whether for money damages, penalties or
declaratory or equitable relief), shall, upon
election by either you or us, be resolved by
binding arbitration. The arbitrator shall resolve
any Claims, including the app I icability of this
Arbitration and Litigation Section or the validity of
the entire Agreement or any prior Agreement,
except for any Claim challenging the validity of
the Class Action Waiver, which shall be decided
by a court.
In addition, we will not choose to arbitrate an
individual Claim that you bring against us in
small claims court or an equivalent court, if any.
But if that Claim is transferred, removed or
appealed to a different court, we then have the
right to choose arbitration.
Arbitration shall take place before a single
arbitrator and on an individual basis without
resort to any form of class action. Arbitration
may be selected at any time unless a judgment
has been rendered or the other party would suffer
substantial prejudice by the delay in demanding
arbitration.
The arbitration shall be conducted by the
National Arbitration Forum ("NAF"), under the
Code of Procedure in effect at the time the Claim
is filed. Rules and forms of the National
Arbitration Forum may be obtained and Claims
may be filed at any National Arbitration Forum
office, www.arb-forum.com, or P.O. Box 50191,
Minneapolis, Minnesota 55405, telephone
1-800-474-2371. If the NAF is unable or unwilling
to act as arbitrator, we may substitute another
nationally recognized, independent arbitration
41
organization that uses a similar code of
procedure. At your written request, we will
advance any arbitration filing fee, administrative
and hearing fees which you are required to pay to
pursue a Claim in arbitration. The arbitrator will
decide who will be ultimately responsible for
paying those fees. If you file a claim against us,
in no event will you be required to reimburse us
for any arbitration filing, administrative or hearing
fees in an amount greater than what your court
costs would have been if the Claim had been
resolved in a state court with jurisdiction.
Any arbitration hearing at which you appear
will take place within the federal judicial district
that includes your billing address at the time the
Claim is filed. This arbitration agreement is made
pursuant to a transaction involving interstate
commerce, and shall be governed by the Federal
Arbitration Act, 9 U.S.C. § §1-16 ("FAA").
Judgment upon any arbitration award may be
entered in any court having jurisdiction. The
arbitrator shall follow existing substantive law to
the extent consistent with the FAA and applicable
statutes of limitations and shall honor any claims
or privilege recognized by law. If any party
requests, tne arbitrator shall write an opinion
containing the reasons for the award.
No Claim submitted to arbitration is heard by
a jury or may be brought as a class action or as
a private attorney general. You do not have the
right to act as a class representative or
participate as a member of a class of claimants
with respect to any Claim submitted to arbitration
(Class Action Waiver). The parties to this
Agreement acknowledge that the Class Action
Waiver is material and essential to the arbitration
of any disputes between the parties and is
nonseverable from this agreement to arbitrate
Claims. If the Class Action Waiver is limited,
voided or found unenforceable, then the parties'
agreement to arbitrate (except for this sentence)
shall be null and void with respect to such
proceeding, subject to the right to appeal the
limitation or invalidation of the Class Action
Waiver. The Parties acknowledge and agree
that under no circumstances will a class
action be arbitrated.
42
This Arbitration and Litigation Section applies
to all Claims now in existence or that may arise
in the future. This Arbitration and Litigation
Section shall survive the termination of your
account with us as well as any voluntary
payment of the debt in full by you, any
bankruptcy by you or sale of the debt by us.
For the purposes of this Arbitration and
Litigation Section, "we" and "us" means FIA Card
Services, N.A., its parent, subsidiaries, affiliates,
licensees, predecessors, successors, assigns,
and any purchaser of your account, and all of
their officers, directors, employees, agents and
assigns or any and all of them. Additionally, "we"
or "us" shall mean any third party providing
benefits, services, or products in connection with
the account (including but not limited to credit
bureaus, merchants that accept any credit device
issued under the account, rewards or enrollment
services, credit insurance companies, debt
collectors and all of their officers, directors,
employees and agents) if, and only if, such a
third party is named by you as a co-defehdant in
any Claim you assert against us.
YOU UNDERSTAND AND AGREE THAT IF
EITHER YOU OR WE ELECT TO ARBITRATE
A CLAIM, THIS ARBITRATION SECTION
PRECLUDES YOU AND US FROM HAVING A
RIGHT OR OPPORTUNITY TO LITIGATE
CLAIMS THROUGH COURT, OR TO
PARTICIPATE OR BE REPRESENTED IN
LITIGATION FILED IN COURT BY OTHERS.
EXCEPT AS OTHERII\fiSE PROVIDED ABOVE,
ALL CLAIMS MUST BE RESOLVED THROUGH
ARBITRATION IF YOU OR WE ELECT TO
ARBITRATE.

[UCL 58]

Gotcha.

Their position strikes me as weird but I don't practice collection law so that doesn't mean anything.

I don't see an attorney fee provision in what you've quoted. Did you notice that Rule 139(e) requires them to attach the applicable contract document?

Aggressively attack their fee request. Comply with the 5 day limit if you can even though they cheated and should be giving you more time than that.

[Harry Seaward 1,356]

As far as the motion for costs and legal fees, they didn't file a "motion".  They filed a "request and affidavit of attorneys fees" and then also a separate "statement of costs and notice of taxation of costs".  Neither have the Rule 128(c ) "you have a right..." notice included.  And they didn't include "any contract that provides for attorney's fees."  Rule 139(e).

 

These guys are slimeballs.  I started to feel a little bad for them being on the hook for the remaining $10,200 of their time, but all of that just went away.

[UCL 58]

Exactly. You've digested all of it. They failed to follow basic procedure. Cite the rules and try and get even their reduced attorney fee request denied. And if it's not, get it denied on appeal.

[BV80 2,797]

@Harry Seaward

 

The part of the agreement that you provided is only about arbitration.  There's no other section that refers to litigation?

[GDayMateAZ 116]

@Harry Seaward

 

The part of the agreement that you provided is only about arbitration.  There's no other section that refers to litigation?

Usually, typical Contract must have a provision for "Reasonable Collection Costs and Attorney's Fees" .... "up to the maximum permitted by law".

"My" SLM Promissory Note has such provision on the first page.

[Harry Seaward 1,356]

@BV80

@Harry Seaward

 

The part of the agreement that you provided is only about arbitration.  There's no other section that refers to litigation?

The section is titled "arbitration and litigation" and was the only thing I could find that seemed to apply.

 

I'm going to have another read and see if there is another section that might discuss collection costs/fees.

[Harry Seaward 1,356]

I can't find anything that says anything about costs on litigation.

 

Here it is in its entirety...

 

Cardholder Agreement, Plaintiff's Exhibit C_Redacted.pdf

 

Edit: It's no doubt the reason they did not attach it supporting their claims to costs.

[UCL 58]

There's an attorney fee clause. It's on page 35.

[Harry Seaward 1,356]

@UCL

There's an attorney fee clause. It's on page 35.

Yep, there it is.  Boy, they really tried hard to hide that in there.  I even read the first part of that paragraph and decided it wouldn't likely be in there.

 

I'll be posting my first draft response to their request for attorney's fees shortly.