Az Piano Lady 14

Thank You All!!---A Midland Win

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There are two theories on doing a MIL to try to exclude the affidavit, business records or the SOL issue.

 

By doing so you give them a better chance to do their research and develop their case working around if possible your arguments.  Sort of showing your hand ahead of time.  May be better that you are well prepared for trial or arb in Superior Court case, without them getting a "heads up".

 

On the other hand, if you do a well researched MIL with points of authority you may win with a judge and really have nothing to lose. At least in Superior Court you have real judges unlike in Justice Court where "judge" probably is not even an attorney and less likely to understand or care about fine points of law - sadly.

 

I don't believe I've done a MIL however had to fight MSJ's too quickly.

 

A friend went to Superior Court on appeal from Justice and had an oral argument.   He lost but may have been on fine points of procedure, although it was with an original creditor with very good records (signed application, cancelled checks etc).  They substituted as witness for the custodian the head of litigation who had 32 years experience with them (Cap 1) and record systems.   But at the trial/hearing while he argued against the validity of the records he did not specifically object to their admission "I object" is very important statement.   The Court in a very long detailed written opinion made an issue that he never objected to the admission at hearing nor in any MIL which would have been the same as an objection.

 

If I ever have another creditor go after my, am going to use MIL's after reading his court decision.

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Well, I've read all 72-77 of arbitration and I'm pretty sure I would go MIL's wth a judge , but this is a real estate atty, and if I bombard him with stuff it may not go well. I'm pretty confident since the judge denied their MSJ that I can prove they have no

evidence.  They did send late (at my request) RFA's and I wonder if those can be used against them.

 

Anyhow a month to go so crunch time. Thanks

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Well I did not get any help or feedback, so I just did what I felt was the right thing.  The arbitrator set a hearing(haven't received anything yet) way out of the timeframe allowed,.  I filed a motion to oppose the Plaintiff's Motion to remove the case from the dismissal calendar(never received that motion) Saw it online.  And I filed a motion to dismiss (speaking motion). As their affadavit was shot down they have no admissable evidence or standing to sue.Also they did not send me answers to my discovery within the allowed time frame. So now we wait for the judges answer.   Happy Friday

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Got a short letter in the mail today from Kaplans office.  As you know the court has set the case for arb on xxxx. We have found that court appearances are expensive and time consuming for the parties as well as the court. (I paid my filing fee LOL)

Instead of appearing at court we would be willing to discuss a settlement with you. We havenothing to lose and everything to gain if we attempt to settle this case between ourselves. Please contact us  This communications is from a debt collector.

 

Does the forum think I should settle???? xboxingx  Okay NOOOOOO

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Sure, settle. Send them on offer. Tell them you will save them any further expense if they dismiss with prejudice. While your at it, compel them with the court to answer your discovery, or send them admissions geared toward you run answered discovery. Ignore those, get them deemed admitted. They deny, compel.

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I did not know in Superior court I did not need to send them a reminder. Someone advised me to do that, so I did. I posted my RFA's etc on #111. After my second reminder they sent them.  I used alot of the ones you sent Combing in Wyoming. They were good . Thanks. They did respond to them. I was also advised not to have them deemed admitted.

 

So I just let it go. I will wait for the judges ruling on my motion. I am not going to waste any time on any settlement because they have no case. And if they want to refile or sell to another JDB, on an old Providian-Wamu case let them try.

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New question, What sanctions if any can I impose on the attys for not mailing me their motions , or reply motions.

 

I never got their Motion to remove from the dismissal calendar.  And it shows online their opposition to my Motion to dismiss with nothing mailed to me.

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New question, What sanctions if any can I impose on the attys for not mailing me their motions , or reply motions.

 

I never got their Motion to remove from the dismissal calendar.  And it shows online their opposition to my Motion to dismiss with nothing mailed to me.

The court would be the one imposing the sanctions.

 

I usually have my hands full without pursuing sanctions for the lying and other bad behavior by DC attorneys.

 

Having not filed similar, I believe the process usually involves something like a motion for an order to show cause why sanctions should not be brought. The opposing party gets a chance to explain their behavior, likely remedy the issue, and possibly avoid sanctions. Anyone that has pursued and received sanctions against an opposing party could probably better explain the procedure. At least in their jurisdiction.

 

If appropriate I would probably make sure I clearly and politely documented on and for the record their failures. If not easily done in the record I may choose to send them a courtesy letter via CMRRR asking that they be sure to serve copies of all future filings as required by AZ civil rules of procedure xxxx© and xxxx(a) and noting the specific filing(s) they failed to send.

 

If they insist on bad behavior I would then consider the hassle of properly attempting to pursue sanctions.

 

Enjoyed reading dont-be-that-attorney-ten-ways-to-make-yourself-look-foolish: http://practiceoflawblog.com/dont-be-that-attorney-ten-ways-to-make-yourself-look-foolish/

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Well they must be lurking in here, they mailed a copy of their opposition to my MTD. This says Defendant's have failed to state a reason to dismiss.

Did they read it right???  Don't know if I even need to bother replying to this. As far as it stand it is still on the dismissal calendar.I guess I should make some response though. Their main point is that although the judge denied their SJ  there are still material issues.

 

Therefore I have no legal basis warranting a dismissal.   Mainly sent the MTD as a backup to my oposition to them removing the case from the dismissal calendar.  I thought i showed good reason why they have nothing for trial since their affadavit was shot down.

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Hope everyone had a great 4th. I spent it in the forest , no TV, or MAIL.  But returned to find that the judge ruled on my MTD denied, however will keep on the dismissal calendar until Oct.  Also, got a letter from the arbitrator ruling on my motion to oppose the telephonic appearance and both parties must appear at the arb trial.  Yay!

 

They had even filed a response to my objection (never sent a copy to me), So a small victory because I want to look them in the face when they go down.

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Had arbitration today.  Kaplan called a consultant at the last minute to show up. Gave her no paperwork. Felt sorry for her.  The arbitrator asked right off the bat, Where is your witness. She said I don't know.

 

He asked if she was authorized to make a settlement. She did not know that so tried calling atty. I said don't bother I'm not interested. This is the arb trial. Geez  He is a real estate atty and she is a family law atty.  Guess who knew more about civil law????

 

It lasted about 1/2 hour and he asked us to file a closing brief??? in three days?? ok did not read that in the arb rules.

 

He did not even know he was supposed to rule in 10 days after the hearing, so he said ten days after he gets the briefs??  He had only heard a couple arb cases so I'll give him a break.

 

The Plaintiff filed a prehearing statement saying their whole case would rely solely on the affidavit from MCM, which was already shot down in my MOSJ. So thanks to everyone for their help, but I'm putting a fork in this one :punknanner:

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Sent off my post trial brief, received theirs  (lame)   . So now the arbitrator rules in 10 days.  I found online the award form so I will start getting my costs together.  Hopefully this is done in 10 days or less. Getting tired of paperwork, motions , filing, etc....... and JDB frivolous suits.

 

So a question, there is a 1 yr sol on FDCPA. They filed this on August 14, if the arbitrator rules before then could I still get one filed???

 

And regardless of a year could you file a suit against the atty for filing a frivolous suit??? Just wondering.  Wish he had not given three days to file some post trial brief, it would have been still in the frame to file the FDCPA violation.

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@Az Piano Lady 14

 

Then it's premature to file an FDCPA claim for a time-barred debt.  And the judge already denied your MTD on the SOL.  Also, until there's a ruling, you don't know if the arbitrator is going to consider the affiant to be a qualified witness. 

 

I know you're short on time, and I guess you could go ahead and file a claim, but if the ruling is not in your favor, you won't have a leg to stand on. 

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Again , Thanks for the answer. In reality I am so sick of paperwork that I just want it to be done.  Filed my closing trial brief with the arb yesterday, so within 10 days I will know if I won or have to appeal the decision.

 

Wonder how JDB atty's sleep knowing how many people they adversely affect?????.  Guess the money justifies it

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Well a quick update and bump to help someone from AZ find a format for interogs.  Thought by arbitration rules they had 10 days to make a ruling.  Because it is me, I guess they can take as long as the want.  Still no decision. Called the court clerk  who I have chatted with many times and she laughed and said he (real estate atty),  and probably first civil arb case was probably having a hard time making a decision. I could motion for him to rule but she said she would just WAIT.

Geez

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Well, ironically the answer from the arbitrator came today and he ruled in my favor, and I now submit my verified statement of costs and Defendant's award to him to be submitted.   I don't know if this qualifies for the HOF winner's or not as the Plaintiff, Midland or atty Kaplan could appeal to the court.

 

However, 10 days after I submit my cost's they have 10 days to answer so I will hold off until then. Also ironically tis suit has gone on more than a year so no FDCPA or counter claims can be filed.  These people are snakes!!!!!!!!!!!!!!!!!!   Can anyone tell me how to change the :BigDance:  name of my thread???  Thanks  and it is a happy day !!! Happy labor weekend to you all

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