Harry Seaward

Arizona - Lost to Cavalry on MSJ - Also Lost on Appeal

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For anyone not familiar with my case, you can read up on it here:
http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona-lost-on-plaintiffs-msj/
 
The short version is Plaintiff filed an MSJ in August of 2013.  The court denied that one.  I filed a MSJ in February 2014.  In response, Plaintiff filed a cross-MSJ with the same arguments from their original MSJ (that was denied) but the cross-MSJ was a much more brief version thank the original MSJ.  The court granted their cross-MSJ.
 
So that is where I am.  I do not have a final order of judgment yet, but I will be filing the required notice of appeal once I get the final order of judgment.
 
I don't know what the justice court appeal fees are yet, but I don't think I can afford them.  There was no trial, and therefore no audio recording to prepare, so maybe the cost from justice court will be lower.  It looks like the fee once the case gets to superior court is going to be $300.  UGH!  No way can I come up with that.  There is also a "cost bond" to cover Plaintiff's legal costs.  I have no idea how that is calculated, but I'm sure I can't afford that either.  The good news is I can request a waiver or deferral of all of the fees.
 
Just when I was getting my hopes up that Plaintiff would be dismissing, it looks like we're just getting started.  This is unreal.....
 
 
Edit:
I used info from a variety of sources when I appealed.  The following proved to be the most informative and helpful.  The first one is a walk-thru that explains timelines and what all needs to be filed and where.  The second one is a packet that has forms and fills in some info gaps from the walk-thru.  The third one is the general "right to appeal" form the court gives you when you lose.  It's sort of a shortened version of what's required to get the ball rolling.  I don't know how often these are updated, but the fee info is not right on at least one of these so plan the fees being 10-15% more than what's stated in these documents.
https://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdf
http://justicecourts.maricopa.gov/HowTo/CV_Appeal_packet.pdf

http://justicecourts.maricopa.gov/CaseTypes/CVForDetAppealInfo.pdf

 

Notice: I appealed a Justice Court case to the Superior Court.  If your case started in Superior Court (debt >$10,000) there is a different process for appealing.  You can find the info here:

http://www.azcourts.gov/Portals/34/Guides/ProSeGuideCOMPLETE(Amended12-12).pdf

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So, what are you going to do? You are going to file for the appeal, requesting the fee waiver then? I really hope you get those fees waived and APPEAL. 

 

Do you regret doing a MSJ, after theirs were denied the first time around? I only ask, cause I have thought about executing a MSJ and now after reading this, I might just wait. 

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I think this will be my strategy:

- File the notice of appeal and pay the justice court fee of $75 (I can afford this).

- when it comes time to pay the $250 cost bond, I'll file a deferral and use the fact that I paid the $75 as a sign of good faith. I don't know what I will do if that gets rejected but I can only ask. In the incredibly remote possibility I lose and cannot pay the $250 at that time, I can then file a request for waiver. If that gets denied, I guess I'll have to owe cavalry another $250.

- once the case gets to superior court I'll file a request for a waiver, or deferral in the alternate, of the $300 fee there. I have to think the court there will be a little more interested in working with me on the fees.

As far as regrets, one of my first thoughts when I got the notice from the court was "gee, that was dumb", but then I took myself back to when I filled my MSJ to reflect on what had taken place to that point. Plaintiff filled an earlier MSJ that had been denied. I really didn't believe three court would give them a second bite at the apple, but just in case, I filled my MSJ at the deadline knowing that if they were to file a cross-MSJ, it would be untimely and should be denied on that alone. But then there is the order from the court that my hearsay objections were overruled in limine, so I wouldn't be able to argue their records inadmissible under Rule 803(6). And after taking inventory of all of that, I came to the conclusion that my case was doomed and had I gone to trial I would have lost anyway. As @UCL put it, the justice of the peace did me a huge favor. I didn't have to go through the stress of a trial right now and with no trial record and no explanation from the justice of the peace on ANY of his rulings, the appellate court will have only mine and cavalry's pleadings at it's disposal when deciding what to do with the case. I can't see them coming to any conclusion other than a reverse and remand. But maybe I'm in denial. Who knows...

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I totally understand your'e position. I am glad you can look at this at the position you are looking at.  Sounds like you have a good plan ahead, just keep putting in everything you can.  Keep you're head up :-).

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If this is the case where you have possible FDCPA violations keep an eye on the federal SOL. You only have one year from the violation to file. 

Good Luck!

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It's official!  Judgment was finally entered so I will be filing my notice of Appeal and request for waiver of the cost bond next week.  I'll update as things move along.

Edit: I objected to Plaintiff's request for attorney's fees but the request was granted anyway.  Guess I'll have to include that ruling in my appeal along with everything else.

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What was the reasoning behind the awarding of Attorney's fees?  Was there a hearing? 

 

There was no reasoning.  Ever.  This judge never once gave an opinion with any of his rulings.

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Ok, folks, I have 60 days to file my appeal memorandum but I have been hammering away at it since Plaintiff's MSJ was granted.

 

Here's what I have so far.

 

Please critique.

 

[deleted - see post #26 for final draft]

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Only able to do  quick scan at the moment. Not too familiar with appeals to superior court.

 

I might consider using phrases other than "absolutely no" or "fatal blow". I might consider using something like "Appellee failed to provide any legally binding" or similar. I like being specific about the erroneous claims of my opponent but for an appeal I would probably avoid being too "flowery" in my language and stick to just the facts.

 

http://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdf indicates a 15 page maximum If that is applicable I would want to determine if that included any certificate of service (if applicable).

 

It appears that one must reference the page and line number for transcripts. I would consider whether it makes sense to expand that to all of my references to the trial record.

 

I would very likely be writing my memorandum as if the potential audience is the AZ CoA. I am always looking for the court above the one I am engaged in to encourage the judge from making an error or permit me to appeal their error. The route to appeal would be on a special action to the CoA. Not an easy path but an impossible one if I failed to get my proper record before a superior court that makes reversible error based on precedent.

 

I would probably want to stay focused on the opposing parties best arguments that they have claimed/would claim that no error was made by the trial judge. I would want to make sure that my arguments/law were very persuasive on those issues.

 

As far as the MTD on counterclaims, this would appear a useful read: http://www.lang-baker.com/articles/wgk-cullen-twombly.htm It discusses Cullen v. Auto-Owners Ins. Co., 189 P.3d 344, 218 Ariz. 417 (2008). I have not read Donnelly but Cullen 2008 is post Twombly and may derail any attempts of opposing to convincingly argue the Twombly pleading standard.

 

Whether the AZ Supreme Court has held something impacting Cullen 2008 in the last 5 or 6 years I do not know.

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@Harry Seaward

 

The Maricopa Justice Court has a sample memorandum on page 12 of the following link:

 

http://justicecourts.maricopa.gov/HowTo/CV_Appeal_packet.pdf

Also on pg 12 oral arguments are available if desired and requested:

If you want to present an oral argument in the Superior Court, you should state “Oral Argument Requested”

in the caption (heading) of your Memorandum. If you use the Sample Memorandum included in this Guide,

check the box “Oral Argument Requested.” (See Form 7)

 

I would also want to know if I needed to request appeal costs with supporting statute(s) in my memorandum to preserve the ability to be awarded them once I prevailed.

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http://www.azcourts.gov/Portals/34/Guides/Superiorcourtljccivilappealsudated.pdf indicates a 15 page maximum If that is applicable I would want to determine if that included any certificate of service (if applicable).

Yeah, I knew about the 15 page limit. I might be able to tweak my margins or font size a hair.

There is no certificate of service on the Memorandum. When I file it I give the clerk two copies and the court mails one of them to Plaintiff.

 

It appears that one must reference the page and line number for transcripts. I would consider whether it makes sense to expand that to all of my references to the trial record.

Appeals to the CoA are a completely different animal so I didn't consider modeling my memorandum after an appellate brief. I have plenty of time, so if the consensus is to detail the references, I certainly can.

 

I would very likely be writing my memorandum as if the potential audience is the AZ CoA. I am always looking for the court above the one I am engaged in to encourage the judge from making an error or permit me to appeal their error. The route to appeal would be on a special action to the CoA. Not an easy path but an impossible one if I failed to get my proper record before a superior court that makes reversible error based on precedent.

 

I would probably want to stay focused on the opposing parties best arguments that they have claimed/would claim that no error was made by the trial judge. I would want to make sure that my arguments/law were very persuasive on those issues.

 

As far as the MTD on counterclaims, this would appear a useful read: http://www.lang-baker.com/articles/wgk-cullen-twombly.htm It discusses Cullen v. Auto-Owners Ins. Co., 189 P.3d 344, 218 Ariz. 417 (2008). I have not read Donnelly but Cullen 2008 is post Twombly and may derail any attempts of opposing to convincingly argue the Twombly pleading standard.

 

Whether the AZ Supreme Court has held something impacting Cullen 2008 in the last 5 or 6 years I do not know.

Great info on Cullen. I had been wondering if there was anything here countering Twombly and this seems to be it. Thanks again!

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I would also want to know if I needed to request appeal costs with supporting statute(s) in my memorandum to preserve the ability to be awarded them once I prevailed.

I don't know how it could hurt to ask so I added this in already.

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Ok, folks, I have 60 days to file my appeal memorandum but I have been hammering away at it since Plaintiff's MSJ was granted.

 

Here's what I have so far.

 

Please critique.

 

attachicon.gifAppeal Memorandum_Redacted.pdf

 

Harry,

 

Usually an Appeal Court would not disturb Trial Court's ruling unless there is an obvious ABUSE OF DISCRETION and/or ERROR OF LAW.

 

You need to present precisely when, where and how your Trial Court abused its discretion and made error(s) of law.

 

You could save some space in your Memorandum just stopping referring yourself in third person.

 

Just follow Bryan A. Garner

"Legal Writing in Plain English: A Text with Exercises (Chicago University Press, 2nd edition, 2013)"

 

and George Harrison "I, me, mine" ("Let It Be", 1969, Beatles).

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After much adieu at the courthouse, my Notice of Appeal is filed.

 

In the end, this is the order I should have handled things:

 

  1. Notify the clerk that I was appealing and was requesting to have the $75 appeal filing fee deferred.
  2. Hand him/her my Application for Deferral or Waiver of Court Fees and Costs with the "appeal fee" box checked (http://justicecourts.maricopa.gov/howto/fee_deferral_and_waiver_packet.pdf)
  3. Ask when that day I could see the judge.
  4. Tell the judge I was appealing and would like to have the $75 appeal filing fee deferred.
  5. Back at the clerk's counter, check to make sure the judge did in fact grant my deferral by checking the correct box on the form, and ask to see the judge again if the correct box was not checked.
  6. Back at the clerk's counter, hand her the rest of my filings as follows:

Notice of Appeal

Designation of Record

Motion and Affidavit of Inability to Pay Cost Bond

 

In the end, I was granted a deferral on the $75 filing fee, and despite rules to the contrary, I was told I was responsible for serving the above filings on Plaintiff, so that's what I have done.

 

Crossing fingers....

 

Plaintiff can oppose my Motion and Affidavit of Inability to Pay Cost Bond, however they have already admitted that there is a contract in place that limits their legal fees to $1,500 and that limit was reached loooong ago.  Unless there is another part of the contract that allows for additional fees if a case is appealed, they have no grounds to oppose my motion.  If they claim additional fees are provided for on appeal, I'm going to ask the court to compel them to produce the contract.  I don't expect it to happen.

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Update:

I filed my motion for waiver of cost bond over 6 (almost 7) weeks ago.  The rules say the court has to decide within 14 days.  I called the clerk and she told me the judge still has the motion and is still reviewing the details of the case.  I asked how to get him to rule on it.  She didn't have an answer.  I asked if I could show up there and ask him to rule on it.  She said I could but the judge has 60 days to decide.  I told her that the appeal rules for that particular motion say the judge has to decide within 14 days.  Her response was that all she could tell me was the judge hadn't decided on it.

 

I have to get my appeal memorandum filed by the 7th of July.  I guess I just move ahead as if the court granted the motion.

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Here is my Second Draft Appeal Memo.

 

Any input would be great!

 

attachicon.gifSecond Draft Appeal Memorandum_Redacted.pdf

 

I would argue that the counter claim (1) on the FCDPA violation is a STRICT LIABILITY statute and the consumer is not required to prove the "level" of the violation only that it actually occurred and nothing else.  

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@Clydesmom

I would argue that the counter claim (1) on the FCDPA violation is a STRICT LIABILITY statute and the consumer is not required to prove the "level" of the violation only that it actually occurred and nothing else.  

That's a good point.  I take for granted that the appellate judges know this, but it is certainly worth mentioning in case they don't.  Plus it takes that argument away from Cavalry when they prepare their response.

 

Thanks for the input.

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@Harry Seaward

 

I think your doc is very well written.  Kudos! 

 

However, I'm wondering about your references to the JDB's untimely actions.   Should you possibly include the court rule and the corresponding dates (both the date the action should have been filed and the date the action was filed) in your argument?  My reasoning is to make it easier on the judge.  If you include the rule and specific dates along with proof of the JDB's filings, he doesn't have to try to compute the time.

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@BV80

@Harry Seaward

 

I think your doc is very well written.  Kudos! 

 

However, I'm wondering about your references to the JDB's untimely actions.   Should you possibly include the court rule and the corresponding dates (both the date the action should have been filed and the date the action was filed) in your argument?  My reasoning is to make it easier on the judge.  If you include the rule and specific dates along with proof of the JDB's filings, he doesn't have to try to compute the time.

I fully briefed the Trial Court on the untimely filings (dates, rules, etc) which is a part of the appellate record.  I had a 15 page limit on the memorandum so I was trying to keep the detailed content limited to the most important issues.  I decided to scrap some of the less significant issues over things I think are more egregious errors.  My feeling is if the appellate court wants to investigate the dates, they will have the info available by way of the objections I filed with the Trial Court.

 

Do you think this is a mistake?

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@BV80

I fully briefed the Trial Court on the untimely filings (dates, rules, etc) which is a part of the appellate record.  I had a 15 page limit on the memorandum so I was trying to keep the detailed content limited to the most important issues.  I decided to scrap some of the less significant issues over things I think are more egregious errors.  My feeling is if the appellate court wants to investigate the dates, they will have the info available by way of the objections I filed with the Trial Court.

 

Do you think this is a mistake?

I would mention the objections citing the documents objected to. Also look into procedure for filing an oversize brief. The extra space would help to spell out better what you want them to do.

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I would mention the objections citing the documents objected to. Also look into procedure for filing an oversize brief. The extra space would help to spell out better what you want them to do.

Since this is a Justice Court appeal, it's an appeal memorandum, not a brief. I don't find any information on being able to go over the 15 page limit. I would be surprised if my appeal got kicked because it was 16 pages instead of 15, but I'm not willing to take that chance at this stage of the game.

Edit: I did cite the objections in my appeal and I referred back to the document filed by the plaintiff as well as my objection on, I think, all of the instances of their untimely filings.

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