MrBookworm 2 Posted March 31, 2014 Report Share Posted March 31, 2014 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. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 1, 2014 Author Report Share Posted April 1, 2014 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. Quote Link to post Share on other sites
Az Piano Lady 14 90 Posted April 1, 2014 Report Share Posted April 1, 2014 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 Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 1, 2014 Author Report Share Posted April 1, 2014 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. 1 Quote Link to post Share on other sites
Seadragon 840 Posted April 1, 2014 Report Share Posted April 1, 2014 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. Quote Link to post Share on other sites
Clydesmom 1,220 Posted April 1, 2014 Report Share Posted April 1, 2014 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. Quote Link to post Share on other sites
UCL 58 Posted April 1, 2014 Report Share Posted April 1, 2014 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). Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 1, 2014 Author Report Share Posted April 1, 2014 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. Quote Link to post Share on other sites
Credator 297 Posted April 1, 2014 Report Share Posted April 1, 2014 Probably well aware of the following but it is new to me: http://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdfRecordings: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 novoIf 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. 1 Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 @CredatorProbably well aware of the following but it is new to me: http://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdfRecordings: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 novoIf 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. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
UCL 58 Posted April 6, 2014 Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
UCL 58 Posted April 6, 2014 Report Share Posted April 6, 2014 I think you've seen this before:http://www.courtminutes.maricopa.gov/docs/Lower%20Court/122012/m5558982.pdfThat'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. Quote Link to post Share on other sites
UCL 58 Posted April 6, 2014 Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 @UCLDid 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.pdfThat'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.... Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 I can't find anything in the agreement re: legal fees. Maybe someone else can see it. ARBITRATION AND LITIGATIONThis Arbitration and Litigation provisionapplies to you unless you were given theopportunity to reject the Arbitration and Litigationprovisions and you did so reject them in the40manner and ,timeframe required. If you did rejecteffectively such a provision, you agreed that anylitigation brought by you against us regarding thisaccount or this Agreement shall be brought in acourt located in the State of Delaware.Any claim or dispute ("Claim") by either you orus against the other, or against the employees,agents or assigns of the other, arising from orrelating in any way to this Agreement or any priorAgreement or your account (whether under astatute, in contract, tort, or otherwise andwhether for money damages, penalties ordeclaratory or equitable relief), shall, uponelection by either you or us, be resolved bybinding arbitration. The arbitrator shall resolveany Claims, including the app I icability of thisArbitration and Litigation Section or the validity ofthe entire Agreement or any prior Agreement,except for any Claim challenging the validity ofthe Class Action Waiver, which shall be decidedby a court.In addition, we will not choose to arbitrate anindividual Claim that you bring against us insmall claims court or an equivalent court, if any.But if that Claim is transferred, removed orappealed to a different court, we then have theright to choose arbitration.Arbitration shall take place before a singlearbitrator and on an individual basis withoutresort to any form of class action. Arbitrationmay be selected at any time unless a judgmenthas been rendered or the other party would suffersubstantial prejudice by the delay in demandingarbitration.The arbitration shall be conducted by theNational Arbitration Forum ("NAF"), under theCode of Procedure in effect at the time the Claimis filed. Rules and forms of the NationalArbitration Forum may be obtained and Claimsmay be filed at any National Arbitration Forumoffice, www.arb-forum.com, or P.O. Box 50191,Minneapolis, Minnesota 55405, telephone1-800-474-2371. If the NAF is unable or unwillingto act as arbitrator, we may substitute anothernationally recognized, independent arbitration41organization that uses a similar code ofprocedure. At your written request, we willadvance any arbitration filing fee, administrativeand hearing fees which you are required to pay topursue a Claim in arbitration. The arbitrator willdecide who will be ultimately responsible forpaying those fees. If you file a claim against us,in no event will you be required to reimburse usfor any arbitration filing, administrative or hearingfees in an amount greater than what your courtcosts would have been if the Claim had beenresolved in a state court with jurisdiction.Any arbitration hearing at which you appearwill take place within the federal judicial districtthat includes your billing address at the time theClaim is filed. This arbitration agreement is madepursuant to a transaction involving interstatecommerce, and shall be governed by the FederalArbitration Act, 9 U.S.C. § §1-16 ("FAA").Judgment upon any arbitration award may beentered in any court having jurisdiction. Thearbitrator shall follow existing substantive law tothe extent consistent with the FAA and applicablestatutes of limitations and shall honor any claimsor privilege recognized by law. If any partyrequests, tne arbitrator shall write an opinioncontaining the reasons for the award.No Claim submitted to arbitration is heard bya jury or may be brought as a class action or asa private attorney general. You do not have theright to act as a class representative orparticipate as a member of a class of claimantswith respect to any Claim submitted to arbitration(Class Action Waiver). The parties to thisAgreement acknowledge that the Class ActionWaiver is material and essential to the arbitrationof any disputes between the parties and isnonseverable from this agreement to arbitrateClaims. 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 suchproceeding, subject to the right to appeal thelimitation or invalidation of the Class ActionWaiver. The Parties acknowledge and agreethat under no circumstances will a classaction be arbitrated.42This Arbitration and Litigation Section appliesto all Claims now in existence or that may arisein the future. This Arbitration and LitigationSection shall survive the termination of youraccount with us as well as any voluntarypayment of the debt in full by you, anybankruptcy by you or sale of the debt by us.For the purposes of this Arbitration andLitigation Section, "we" and "us" means FIA CardServices, N.A., its parent, subsidiaries, affiliates,licensees, predecessors, successors, assigns,and any purchaser of your account, and all oftheir officers, directors, employees, agents andassigns or any and all of them. Additionally, "we"or "us" shall mean any third party providingbenefits, services, or products in connection withthe account (including but not limited to creditbureaus, merchants that accept any credit deviceissued under the account, rewards or enrollmentservices, credit insurance companies, debtcollectors and all of their officers, directors,employees and agents) if, and only if, such athird party is named by you as a co-defehdant inany Claim you assert against us.YOU UNDERSTAND AND AGREE THAT IFEITHER YOU OR WE ELECT TO ARBITRATEA CLAIM, THIS ARBITRATION SECTIONPRECLUDES YOU AND US FROM HAVING ARIGHT OR OPPORTUNITY TO LITIGATECLAIMS THROUGH COURT, OR TOPARTICIPATE OR BE REPRESENTED INLITIGATION FILED IN COURT BY OTHERS.EXCEPT AS OTHERII\fiSE PROVIDED ABOVE,ALL CLAIMS MUST BE RESOLVED THROUGHARBITRATION IF YOU OR WE ELECT TOARBITRATE. Quote Link to post Share on other sites
UCL 58 Posted April 6, 2014 Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
UCL 58 Posted April 6, 2014 Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
BV80 2,816 Posted April 6, 2014 Report Share Posted April 6, 2014 @Harry Seaward The part of the agreement that you provided is only about arbitration. There's no other section that refers to litigation? Quote Link to post Share on other sites
GDayMateAZ 116 Posted April 6, 2014 Report Share Posted April 6, 2014 @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. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 @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. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 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. Quote Link to post Share on other sites
UCL 58 Posted April 6, 2014 Report Share Posted April 6, 2014 There's an attorney fee clause. It's on page 35. Quote Link to post Share on other sites
Harry Seaward 1,356 Posted April 6, 2014 Author Report Share Posted April 6, 2014 @UCLThere'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. Quote Link to post Share on other sites