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I've posted a bit about this case before. I was sued once before by Admiral Inv. with the local office of GurstCharg, and won a D w/o P. Within months, the TL was gone from my CRs.

 

Now I am in the midst of it with CACH and the lead attorney for the local office of JoPezz. They pocket served me in Aug of 2012, I answered. They waited till late Jan of this year to notify me that they were going forward. I filed a Motion to Compel Private Contractual Arbitration early last month, on the same date that they opened the case--they hadn't sent the Complaint to the Court, at that point.

 

Of course, I have a CMRRR of their receipt of the Motion, and my response to their ROGS and RFPD. In the cover letter to my MTC, I state that I am deferring discovery to what is agreed upon in arbitration. I state it again in my response.

 

in the last week of last month, I called to schedule the hearing for my MTC, and sent the Notice of Motion. 

 

Five days after they received my Notice, I received a packet with their MSJ, (what a surprise, huh?) and the same hearing date. Obviously, if I have not sent discovery, I want the opportunity to do so, and receive the judge's determination on that motion,  before he hears their ridiculous MSJ. 

 

I contacted the judge's scheduling clerk last week, to find out if the two motions could be separated. She suggested that I contact the attorney for the plaintiff, asking for cooperation, and then send an email to the judge. 

 

So, that's what I did. Sent an email to the address that the court clerk gave me, reminding him that I had deferred discovery specifically because of me MTC, and told him that I would be contacting the judge in two days, and that it would be better if we could appear to be cooperating with each other.

 

When I heard nothing by the afternoon two days later, I sent an email to the judge, requesting that he stay the MSJ till after completing his deliberation on the MTC, and attached the email I had sent to the attorney.

 

Today I got a copy of a letter, attached to an email. In it, the opposing attorney throws a small hissy fit, claims that MN jurisprudence won't allow for removing to arb when the party hasn't mentioned it in their initial filing. He mentions case law from the 1950's and 1980's, and claims that two of his recent cases also demonstrate his point. ATT V Concepcion pretty much invalidates any case prior to it, and in his two cases, one of the defendants "claims" to have sent an arb demand, but had no proof, and the other had verbally demanded it at trial. Because of that, my MTC is "meritless" and should be denied, and move forward with the MSJ.

 

So. All that background for this question: what would some of you more seasoned members do in this particular case? Just be patient, and see what the judge says about the stay for the MSJ? Send ANOTHER email to the judge, pointing out the vast dissimilarities between Mr Attorney's two cases and mine, and the fact that the SCOTUS overrides any state court precedent set before it?

 

Or something else entirely that I haven't thought of?

 

In advance: THANK YOU ALL!

 

 

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Trying once more. 

 

I read with interest the rules for MN courts for dispositive motions. Mine, of course, is not: assuming that the case goes to private arbitration, at some point it will come back to the court.

 

But the rules for dispositive motions state that all documents in association with them must be filed with the court at least 42 days before the court date. None of the documents for the MSJ meet that rule. 

 

I think I need to talk to the scheduling clerk, one more time. What do you think?

 

I realize that, should the judge not grant my MTC, that I will need to proceed with discovery and respond to the MSJ. But even just using the 42 day rule, I should be given an additional two weeks to respond and prepare, at minimum.

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The judge denied my request, the MSJ will be heard, 29 days after its submission, along with my MTC. Which, of course, means that I am scrambling to get my Motion in Opposition together.

 

I found this gold nugget: http://decisions.courts.state.ny.us/10jd/nassau/decisions/index/distcivil/2011/aug/cv-004381-11.pdf

 

It's not MN, but the rules of evidence in most states, including both NY and MN, are based on federal ROE, meaning that, while citing the case law might not be a great idea, using the language of the judge will certainly be an improvement on my attempting to sound lawyerly in my motion.

 

I'm not the only poster here who has a case with CACH, where there was attached a robo-signed affidavit from an *officer* of a wholly owned subsidiary of the OP, attempting to sound like a keeper of records. Good stuff, and has improved my mood immensely!

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@Wins the Battle

 

Did you raise arbitration as an affirmative defense in your answer?

 

What did the other party say about your motion to compel in their MSJ?

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I did not mention it in the Answer. I did, however, file the MTC prior to receiving, or being aware of, their sending discovery. In fact, they were filed on the same day, and I received my copies three days later. Had I not gone in to the courthouse to file my motion I wouldn't have known till then.

 

In MN, attorneys can email their filings, a privilege that lay people don't share. Be that as it may, the green card for their Notice of Motion was signed for on the same date that they filed their MSJ.

 

The attorney claims that MN case law "clearly" precludes filing for private arb if any action has been taken in a suit. But the case law he cites is from respectively, the 1950's and the 1980's--not such a large volume of case law, and none since ATT V Concepcion. He, in his memo to the judge opposing waiting on the MSJ, includes the decisions in two of his cases against private arb.

 

In neither one was a MTC filed. In one, the defendant declared in the courtroom that they elected arb. In the other, the claimant stated that they'd "told" the attorney that they wanted arb, but had no written record of having done so. As for mine election and motion? He calls it, and I quote, "meritless."

 

The biggest thing I have going for me, I think, aside from the abysmally inadequate "evidence" they have gathered, is the large ego of this guy. When they first sent the pocket service, almost two years ago, the summons was signed by two of the junior staff. He is the "lead attorney", with, of course, a string of default judgments and a handful of other wins under his belt. The losses are, it appears, all on appeal or when his client was the respondent in an FDCPA suit.

 

I have my filing of the MTC, my notices to the attorney's office and the contract language itself, which states that if "at any time" either party elects private arb, it will stand, and the standard of contra preference in Contract Law.

 

I've been reading off and on, working to get a narrative together for my MIO. But since I opened the letter from the court on Saturday, I've spend a good 20 hours on this. The link above has been helpful in the extreme, because, realistically, I WON'T get the removal to arb, and the case will be decided based on the evidence available in just a few days.

 

One big question. Someone mentioned, in another thread, that CACH has no employees. They are a paper corporation, owned by Square Two Financial. If you google "CACH employees" you get nothing, or links to here, talking about how there are none. Google Square Two and you get reviews by present and former employees (upper mgmt--the company walks on water. Lower level--they've been making up reasons to dump staff. An IT person called the environment "toxic." Not surprising.)

 

At any rate: is there case law that can help (or hurt) me that references paper corporations? How can, for example, someone file a non-fraudulent affidavit claiming to be the custodian of records for a paper corporation? Claiming to be attaching records created in the course of business for a corporation that does no business, as it has no employees? The affiant I'm referencing lists themself on LinkedIn as an employee of, of course, Square Two.

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@Wins the Battle

 

In my opinion, the first thing you need to find out if you needed to raise arbitration as an affirmative defense that must be raised in an answer to a complaint.

 

I have my filing of the MTC, my notices to the attorney's office and the contract language itself, which states that if "at any time" either party elects private arb, it will stand, and the standard of contra preference in Contract Law.

 

 

 

Some courts have also ruled that one cannot raise arbitration at any time.  It depends upon your state laws.  How have your courts ruled?

 

 

One big question. Someone mentioned, in another thread, that CACH has no employees. They are a paper corporation, owned by Square Two Financial. If you google "CACH employees" you get nothing, or links to here, talking about how there are none. Google Square Two and you get reviews by present and former employees (upper mgmt--the company walks on water. Lower level--they've been making up reasons to dump staff. An IT person called the environment "toxic." Not surprising.)

 

 

This gets much more involved, and you'd need to consult an attorney.  Remember that anything you claim, you have to prove.

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@Wins the Battle

 

In my opinion, the first thing you need to find out if you needed to raise arbitration as an affirmative defense that must be raised in an answer to a complaint.

 

I have been looking, but there's nothing that jumps out in case law. Other than the moldy stuff the plaintiff cites. 

 

 

Some courts have also ruled that one cannot raise arbitration at any time.  It depends upon your state laws.  How have your courts ruled? 

 

I understand that. But post-Concepcion, that is very much an appealable decision. SCOTUS overrules any state court, at any level

 

 

 

This gets much more involved, and you'd need to consult an attorney.  Remember that anything you claim, you have to prove.

 

I suspected so. I do have a couple giant inconsistencies  I've found in their so-called evidence. But I won't get into them till after the trial, as I am pretty sure they monitor here. I said something a month ago, and noticed in the most recent set of papers something related. When this is over, I will share whatever I've learned from this particular plaintiff and this particular law firm.

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Just read the two cases cited.

 

In the earlier (1950's) one, a group of employees were denied arb. The contract, however, contained wording that limited the situations where arb was available. The contract of BoA says, "Any dispute".

 

The 1980's one was a case where a contract employee sued, and the employer, after answering the suit, decided to invoke the arb clause. Given that credit card agreements are contracts of adhesion, the legal principle of contra preference applies in my case, where it certainly did not in that one.

 

Concepcion, at its heart, is about class action suits. But, because, more generally, it's about the right of the states to override the FAA, it also created a new legal landscape (based on the opinions of the majority of the SC) wherein election of arbitration, if available in a contract, is to be honored by the court, at all state and federal levels. Here's a quote from a blog piece, not long after the decision: "The majority opinion emphasized the liberal federal policy embodied in the FAA favoring arbitration where parties have contracted to do so, and in the manner provided. The opinion notes that while the FAA’s saving clause preserves generally applicable contract defenses to arbitrability, it does not preserve any state law rules that contravene the FAA’s overriding policy favoring arbitration." The blogger further notes that SCOTUS had, within the same year, issued summary orders on a number of cases, citing Concepcion.

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Thanks, BV80. I motioned for arb in my last case, but elected in my answer, and, frankly, the attorneys they threw at me were less skilled. Nevertheless, if this judge is willing to adhere to the ROE, he'll throw this one out, whether or not I am granted the removal to arb.

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OH MY! I just found the smoking gun.

 

When this execrable JDB first started dunning me, they used a the present attorney group. They never validated, and I then got a dunning letter from a DC attorney in OK. He went away after DCing, a  validation that didn't even meet the criteria of the FDCPA, and a letter stating that the debt was still in dispute. 

 

I had forgotten that these guys came first! And GUESS WHAT my DC letter contained? 

 

You got it. An election of arb. HA!!

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@Wins the Battle

 

I had forgotten that these guys came first! And GUESS WHAT my DC letter contained? 

 

You got it. An election of arb. HA!!

 

 

For those of us that know very little about arbitration, what does that mean?

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It means that, when I sent the DV letter, I noted that I elected private contractual arbitration to resolve all disputes. The language of most credit card arbitration clauses is nearly identical, and this one happens to offer it for "Any dispute, claim or controversy..."

 

Because my very first communication with them contains the election of arbitration, they are now precluded from claiming that I waited too long to elect. As I mentioned yesterday, a credit card contract is a contract of adhesion. The creator (or one claiming to be the assignee of the creator) of the contract cannot claim that any portion of the contract is void without also voiding the entire contract. Credit card companies included arb clauses because it was cheaper for them to toss their arrearage claims to NAF than to go to court, and NAF rubber-stamped their claims.

 

When they were barred from hearing consumer credit claims by the government, the CC companies were left with AAA and JAMS. This particular contract specifies NAF and JAMS. In JAMS, the consumer is limited to $250 at most for the cost of arbitration. They don't allow the creditor, even if they go all the way through and win, to assign their substantial costs for arbitrating to the losing party. And, in fact, most arb clauses say that both parties will pay their own costs in arb. To go all the way in arb with JAMS costs the alleged creditor a minimum of $10,000, payable to JAMS and the arbitrator. In addition, of course, they have their attorney's fees. And arbitration attorneys tend to be more skillful, and therefore more expensive than the run of the mill DC attorney.

 

All of the above is why a) consumers with small to medium sized debts being alleged by both OCs and JDBs are electing arb, and B) why many or most of the CC companies are removing the arb clauses from their newer contracts. However, they were too clever by far when they wrote those contracts, as every arb clause I have ever seen has a survivability sub-clause, and that gives the consumer the right to argue that any contract that was in force during the time of his/her owning of a credit card is the one that governs.

 

Would you mind if I send you by PM my MIO, when it's done? Usually, I can determine myself whether I'm making sense. But I don't trust my brain right now. None of this is helping the concussion and the concussion isn't helping any of this. If I hadn't been to court once before, I would be totally lost right now.

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Sorry, have been away for a few days.

 

You should be fine with your MTC. Your objection to the MSJ should be based on the fact that since you have elected to resolve this by contract that the court case should be stayed until arbitration is complete.

 

You cannot rely on what the opposing attorneys say you can and cannot do.  I had them argue that 1) I waived arbitration by filing an answer, 2) they waived my right to arbitration by filing a court claim, 3) arbitration was removed from the contract 4) arbitration was just a delay tactic, 5) it goes on.

 

They quoted case law that barely even resembled our case.

 

In the end the judge the judge granted the MTC so in my case, the MSJ was moot because the case was stayed.    Even if the hearing is on the same day, let the judge know the MTC needs to be heard first because it addresses jurisdiction.

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@iheart, I agree. Seriously, if I let them tell me what I can and cannot do, I would have paid a lot of money to their bottom feeding clients, two years ago.

 

I wanted to read the cases they cited, so I would know WHY they were inapplicable, and I'm glad I did; I think I make good arguments against that nonsense.

 

They waited almost a year and a half after pocket service to file; any nonsense about a delaying tactic can surely be met with that fact.

 

What makes me so happy about finding the original of the DV letter is that it's proof that, in their MSJ, they are committing fraud on the Court. If I have the file, surely they do, as well, and arguing that I failed to invoke the arb clause is a clear and proven lie.

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One thing that was offered in both MSJs: a recitation of a timeline, in the form of affidavit, by the attorney of record.

 

I'm going to extrapolate from that to the assumption that this is common practice in collection cases? In any case, it's not admissible, if called out. As the legal representative of one of the parties, the attorney cannot be deposed, and therefore, is not permitted to offer an affidavit. 

 

Last time, attorney was scolded by the judge for doing that. THAT was nice.

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Well, this was a grand day. I was called a liar in the courtroom, as, apparently, Joe Pezzuto's thugs lost my DV letter with the election in it.

 

I don't sign them, d/t the propensity for some CAs to allow signatures to migrate to documents where they don't belong.

 

The sloppy, unprofessional looking "lead attorney" said, and I quote, "Your Honor, I don't like calling anyone a liar...."

 

And then proceeded to do so. 

 

I walked out of the hearing having NO CLUE which way the judge will rule: grant my MTC, or their MSJ. 

 

I do know one thing, though. There is a reason why JDBs will settle rather than go through the court when they know that they've lost. The judge asked me, several times, if I had any case law to support my contention (of robo-signed affidavit from FIA "officer" etc). And, of course, I did not. 

 

If you settle, there IS no case law. So you can continue to win cases on garbage affidavits. I'm not a fan of class action lawsuits. But I wonder about one against FIA for their robo-signed docs in the cases of the billions of dollars of credit card junk they sold to CACH. THAT might be a good thing to file a class action about. What do you think?

 

One other thought that cheered me a bit. I am, in essence, judgment proof. I have a small business, but its expenses usually let it act as a tax write off for us. My personal income is the 1/2 of my ex's pension for the years that we were married, and the early SS I took. I use some of that SS money to buy and sell options--inside my IRA, which is also not able to be touched.

 

Hmmmm. Nice thought.

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It's now nearly three weeks since the hearing on the two motions, and the online court records are still showing "Taken under advisement."

 

I check twice  a day, at around 9 am and after the courts close in the evening. Gah.

 

I've decided that, if the judge is waiting this long to file his decision, it might mean that he's actually looking at the case law behind the motions, not just the cherry-picked quotes chosen by both parties.

 

What helps even more, (I hope) is that, post Concepcion, SCOTUS issued a number of decisions and advisories on Arbitration that all supported the absolute right to arb.

 

Take that, CACH scums.

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One thing that was offered in both MSJs: a recitation of a timeline, in the form of affidavit, by the attorney of record.

 

I'm going to extrapolate from that to the assumption that this is common practice in collection cases? In any case, it's not admissible, if called out. As the legal representative of one of the parties, the attorney cannot be deposed, and therefore, is not permitted to offer an affidavit. 

 

Last time, attorney was scolded by the judge for doing that. THAT was nice.

 

Indeed, Recitation of the Litigation Timeline as "Statement of Fact" is very common in such cases  ...

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@Wins the Battle

 

As the legal representative of one of the parties, the attorney cannot be deposed, and therefore, is not permitted to offer an affidavit.

 

 

An attorney is allowed to submit an affidavit under certain circumstances.  A recitation of the timeline of the case would seem to be within his personal knowledge.

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You are both right. But in this case, and the other, the attorneys took it upon themselves to recite a timeline from the alleged opening of the account--information that they CANNOT have first hand knowledge of.

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Just checked the court website. Status is "Closed-adminstratively." 

 

I THINK that's good. It's too late to call and find out today.

 

Will call first thing in the morning!

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