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MTC arb. hearing same day as SJ


prove-it
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Hi Everyone,

                             

I'm new to this forum, But I have been following along and have seen some great advice given regarding Arb.

I've taken the Arb (JAMS) strategy As far as I can and now need to fine tine it and increase my odds when I enter The Captains house (Captain Kangaroo).

 

I'm sure I'm going to post not enough info on some things and too much info elsewhere. So please feel free to tell me to add specifics and also tell me when I've taken too long of a walk to the well.

 

Being sued by a JDB. in Ma, Sm. Claims Court.

It's the same M.O. Credit card debt charged off bought by JDB. Debit is from 2008 and is with in SOL. 

Went to hearing with Magistrate Oct. Tried the old hey where is the original agreement followed by what about chain of custody .............. Magistrate did not want to here any of it, Instead continued it and told me to research defense's and be better prepared  when I return. I did just that and am pursuing Arb. with (JAMS)

 

Continuance set for end of Jan 2015.  So last week I started my Arb. paper work.

I sent the court an MTC Arb. showing where Arb. is in the agreement and enclosed the complete card agreement (Highlighting the Arb. clause) along with everything that JAMS requires to start.

 

 

Sent to Court the JDB and there attorney:

 

MTC Arb

Jams cover letter

demand for Arb with JAMS

proof of service

copy of card agreement (Highlighting the Arb clause)

affidavit (best of my knowledge this is the agreement that blah...................)

 

Sent to JAMS:

 

2 copies of everything listed above minus the MTC Arb.

 

3 days latter I got a response from the court. They set up hearing for the same (DAY and TIME) as the continuance.

Also I got an Email from JAMS saying basically it's been accepted but can't start to pick arbitrators until they receive payment (I'm glad and was counting on it)

 

I used an agreement from 2011 because that is the only one I could find for this OC I tried all the sources listed.

 

I have not heard from the JDB and don't expect too.

 

So now while I'm waiting I would like to tie up any loose ends and prepare to fight them on my MTC Arb. And prepare for an Appeal.

I'm pretty sure this Magistrate is going to hear me out before he denies me, I hope he does not but that would not be based on reality. when I sent him all the Doc's I spoon feed him a road map to Arb.

 

I would not be surprised to learn the Mag.and the JDB. were rehearsing there lines right now. 

 

I'm hoping it goes to Arb. to commence the MILKING of the JDB's bank account.

But I want to know the best way to an Appeal.

And by them scheduling the events at the same time going to hurt me in Sm. Claims but Help me in the Appeal.

 

I'll stop now I know I've gotten off track. Any info especially from members who have been down this road in Ma,  would be greatly appreciated.

 

Thank You,       

   

 

 

         

                                     

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You need to be very assertive at the hearing, that the first order of business is your MTC, as this challenges the court's jurisdiction.  If the court lacks jurisdiction due to your election of arb, then the JDB's SJ motion is moot.

 

Will there be a court reporter at this hearing?  If not, it would be worth your while to arrange for one, or to record the hearing and have it transcribed, if they allow it.  If these actions are not possible, insist that the magistrate issue a decision in writing.

 

I'm not familiar with your state or small claims, but I have been involved in "behind closed doors" hearings where there is no record of the crap they do, which makes it hard to appeal.

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Assertive is not a problem I'm with Ya on that, Ma, Sm. Claims is very informal so no on the court recorder but if I can make the Mag. issue me in writing his decision while I'm standing there I'll insist on it.

 

I'm a little worried about them setting the MTC Arb   at the same time as the SJ. If I loose the MTC and the Mag. goes right into the SJ I know he will rule against me that is a given and I know that is why he made it for the same time.

 

So with this scenario MTC denied followed by granting the JDB SJ. How do I appeal MTC Arb. if the case has already been ruled on.  

 

Thank You for your help      

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@prove-it

 

You need to do some research.   If you're too far into the lawsuit, you can waive the right to arbitrate.

 

If the JDB shows up for hearing and doesn't dismiss, you can expect that they'll probably argue that you didn't provide the right agreement or that you've engaged in litigation and have waived the right to arbitrate.

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I agree. And I'm expecting them to argue about the agreement. I asked for the original agreement the !st. time in court and was told by the Mag. it was not needed by the JDB to prove his case. I then brought up Chain of Assignment the Mag. continued it for Jan 15 During my research after leaving court is when I started looking into Arb. I know that I am never going to see the original agreement but for the hell of it I called the OC gave them my old account # and they told me that account is closed but when asked they said they no longer had it. I called the JDB and of course they don't have it. I did this just to get confirmation from the OC and JDB also got there names and dept. So according to everyone involved it don't exist. But for me to show an Arb. clause I have to show an agreement so I downloaded one and started my Arb case.

 

 This is all in a time period from the 1st. and only court date Nov 2014  to  last week gathering doc's pushing papers. Now this week court gives me MTC arb. hearing and sets it for the same day as the continuance  Jan 2015

 

What constitutes entering litigation, and If ligation involves contracts/agreements and a clause such as an Arb. clause is in said contract/agreement ?

 

No agreement was produced at the beginning so litigation started.

Now once it/one was found (before the case is ruled on)  
Why could it not be submitted (especially when it should have been provided by the JDB)  And I the defendant had to burden myself finding it/one.

I can already see this going round and round with the JDB having the last word.

 

Also I don't think I can argue the agreement issue during the MTC Arb. HAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA

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If the MTC ARB.is denied (It would have to be denied in order for the court to go forward with the SJ) Both are set for the same day and time.

So if the MTC Arb. is not granted or denied but instead the Mag. says, The typical Mag. line of I'll rule on it and let me know (Then the SJ hearing must be continued again till after he rules on the MTC Arb. motion. Common sense right (I'm not so sure)

 

If MTC Arb. is denied is there anything I can do to stop the SJ hearing from going forward, Like asking the Mag. to not rule on it pending the outcome from an appeal on my MTC Arb. (appeal in a higher court)

 

I will argue as far as I can, If I get it great if I don't it will not be because I did not show enough Doc's or did not present the facts right. If denied it will be purely the Mag. decision to ignore it all 

 

So any advice on getting an appeal, in this situation. ask/demand how -why-when ????  is there a better place to ask this ?

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  • 2 weeks later...

I looked up your Procedures for Arbitration should be Massachusetts General Laws Annotated Part 111. Courts Judicial Officers and Proceedings in Civil Cases.

 

It appears to be listed as M.G.L.A 251 Sections 1-19.

 

A quick review there is no mention of waiver, but this doesn't mean there is not some law on waiver.  I did notice a MTC was to be brought in Superior Court.  It seems you are in Small Claims, which could cause an issue. 

 

Read a couple of cases it appears waiver can be ruled based on how much litigation has transpired.  It seems there is no bright line, but an arbitrary finding by the presiding judge.

 

My only advice is that you might re-file your motion in Superior Court, and get a ruling there.  That ruling would supersede anything happening in Small Claims.  You never know though the Small Claims judge may want to really practice some law and find in your favor....

 

Tough choice for you to make....

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Thank you skippy1960,

 

Every time I try to research Arb. in Ma Sm. claims I only get so far. Then it just raises more ? then answers. Perfect example is with litigation.

 

So I'm going in at 8:45 to fight for my MTC Arb. then also at 8:45 the Mag. will rule on the JDB's SJ.  

 

I'm hoping someone has gone through appeals in MA. and could shed some light. What steps (if any) I can take. 

So when he denies my MTC Arb. then rules against me on the SJ.

If this happens then would I have to appeal both the SJ and my MTC.  or would getting an appeal granted for the MTC Arb. automatically wipe out the SJ ruling.   

 

When I'm denied my MTC Arb. Should I / Can I tell the Mag. I'm going to appeal this, Before he starts on the SJ hearing or will it make no difference.

 

Also I'm only interested in info on appealing to a higher court because any MTR or presenting new evidence is just a huge waste of time and money if it is keep with this clown court.

 

And leave it to Ma, to make the appeals process another riddle of incomplete statements and facts punctuated with question marks.      

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Prove,

 

It is very hard to help when you are not from my state.  It can take 6 months of work to understand a states civil procedures and rules.  Given that here is what I would suggest.

 

If your MTC is denied, you be sure to ask the court respectfully, on what basis of law or procedure that the court is basing the denial?  You should explain that you intend to appeal and want a clear record of the law or procedure that the denial is based upon for the appeal.

 

If the court attempts to continue with the SJ motion, just remind the court that the previous MTC Arb is a "jurisdictional issue" then ask the court if the SJ hearing could be continued until after the appeal on the MTC.

 

If the court refuses both and rules against you then you will need to appeal. 

 

You really need to think and speak more positive about what your are doing, your posts are really defeatist in nature.  In most cases MTC Arb is pretty straightforward in that Federal Law is clear.  Assuming you have done your research and included some case law both state and Federal, you should be fine.  Hopefully you filed a Declaration in Support of your motion, this always helps as Declarations or Affidavit's can be considered testimony to support the motion.

 

Most of the time the other side will not have testimony from a witness to support their opposition to the motion.

 

Best of Luck 

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That's more what I was looking for, The mechanic's of it. Like when to Ask vs Tell, keeping the MTC Arb. 1 st.  and foremost, also getting confirmation and detailed reasons for ....................... 

 

I have submitted my Arb case with copy's of an outlined card agreement, affidavit claiming to the best of my knowledge blah..................  plus a letter from JAMS waiting for payment to commence (so JAMS are on board)  

 

I absolutely could not agree more the MTC Arb. should be a slam dunk. But what I have witnessed so far.

Let me just say This whole MTC Arb. in front of the Mag. is a necessary evil. If it could be avoided or bypassed and I could have jumped to fed court and submitted my MTC Arb. there I would have, And still will appeal to a higher court

 

The JDB's rent a lawyer (the one that sits in the front row when the Mag. reads who's got Cap 1 today  ok now who has got Discover and so on.................... great lets get started.      This will be the same lawyer the same room in front of the same Mag. for the MTC Arb. They clearly don't know the facts about the debt or any details about the MTC Arb. 

They know it, the Mag. knows it and I know it. In this environment where it is almost bragged about how little input the defendant has. So there is no way no how the Mag. is going to see the light this one time and grant my MTC Arb. It's not defeatist it's just being realistic.

 

Again thank you skippy1960 If you should think of any members that might have some experience with appeals in Ma,

Also I will let you know how it turns out. I hope I get my MTC Arb. but either way maybe this will help someone else in Ma, with a similar situation. Win loose or draw I'll post what happens.

 

Thanks again.              

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Prove,

 

Don't assume that the Magistrate and the Attorney's are as buddy, buddy as they may seem.  Remember they are both required by their jobs to sit there day in and day out and deal out default judgments and the like.  As you can imagine it would get pretty boring, never having any real law to practice.  The judge having to hand down the same rulings, because most Pro Se that do fight have little knowledge.

 

The Plaintiff's attorney will be surprised because they never read the file until day of, so they will not know what to do, or what to argue.  So they will likely be deer in the headlights when your Motion comes up.

 

Frankly, by now you should have received some type of Opposition from the other side.  If you haven't this would mean your motion is un-opposed, and the judge has a better likely hood of having to grant the motion.  The court generally will not deny a motion that is unopposed, unless it is outside some civil procedure or statute, that they know about....

 

Has the other side sent Opposition to your motion??????

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That's one of the many problems with Ma, small Claims it is (Very Informal) The JDB does not have to oppose anything nor do I. Just like when a JDB or any plaintiff brings suit in Ma, Small Claims the defendant does not have to answer (You Can) but you don't have to You answer when you show up to court. There is no discovery no witness's, They allow the JDB Robo signed affidavits, Hearings are not recorded no body is sworn in. The court is run how ever the Mag. sees fit.

 

The reason most defendants don't answer before time is if you have any chance of winning how ever remote by answering ahead of time only tips off the JDB as to what your trying to do. 

 

When I mailed out my MTC Arb doc's The court, JDB, & JDB's lawyer all got the same doc's. So the JDB knows exactly what I'm doing and he is using the same tactics as I or another defendant would and that is to not tip your hand until you have to.

 

You see how this game is going so far. They have my arguments to go over and do you think that these JDB's lawyers and the Mag. (That see each other on a daily basis are not talking about the thorn in there side ME.)  You think that the 50 default judgments per day that these clowns sign off on is some how become routine for them and they are waiting for someone like me to spark there zest for dispensing law again. I wish it were true but sounds more like a made for TV movie.  LOL.

 

Please don't take anything I'm saying to be disrespectful or dismissive I know it is coming across negative and I apologize  I truly thank you for letting me vent and explain my points. I know you have better things to do besides answering my posts. But playing devils advocate helps me a lot to tune up my arguments and better prepare me.

Also everything you have said should be true, needs to be true, I can only hope is true. But MA Small Claims court is Bazaro land

 

And to be honest the whole Sm. Claims being very informal is counter productive for these type of technical sparing match's were one is trying to use law and contract language to gain leverage and the other (Mag. & JDB) are saying well that's just the way it is done here.................  NEXT !  

  

As I get closer to the day,  It's nice to know I can bounce some ideas off you even if it is just to get a different point of view. It all helps.

 

Thank You skippy1960       

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Prove,

 

I get the informality of Sm Claims, it means the rules of civil procedure are lessened.  It doesn't mean that the law and statutes don't count anymore, the Judge/Mag still has to follow the law.  If they don't then you have an appealable issue no matter how informal the proceeding maybe.

 

Next don't assume that the attorney that is in court will have prepared for your Motion.  In many cases JDB/Collection firms use Rent an Attorney for appearances in court, as I would expect they would in a Sm Claims situation.  As previously stated unless the attorney of record on your case is the one you have seen in court, they may not see your motion until they open the file delivered to them the day before with the 50 other files that are set for default and summary judgment. 

 

Point is they may not be as prepared as you think to deal with your Motion. 

 

I will be interested to hear how it goes, hopefully you will post the results.

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Thanks again,

 

I will post all result's the good, the bad & the ugly. Also if anything develops before my court date I'll post that as well.

 

And I'm pretty sure it will be the same rent a lawyer because at the 1st. appearance the Mag. asked this lawyer So miss so and so I'm going to continue until (date ???) you will be here on that date won't you, Oh yes Mr. Mag I'm always here (followed by chuckle between her and the Mag. 

  

As far as them following the law, It depends what law your talking about as they will pick and chose which ones to follow. They have no one to answer to

 

They have ignored the law that governs contracts/agreements by allowing the JDB. to sue without showing any agreement, no chain of assignment, and has listed two different amounts that there suing for.

When I asked the Mag. about these issues he told me right to my face. I'm not interested in hearing your reasons for why you don't think you owe the debt or how the plaintiff did not follow procedures, That's not how we do things here, The JDB's lawyer said to me and the Mag. that's right all I need is a statement, The Mag. chimed in with yes we all work together here.

 

Before I started to defend myself and go to court instead of letting them get a default judgment against me. I would have not believed just how bad the Ma, Sm. Claims court  system is. I always thought people were just pissed because they lost or were just exaggerating about a kangaroo court. I'm still trying to understand some of the blatantly unlawful, misleading, and corrupt actions taken by this court.     

 

I'll leave it here and let you know how many clowns get out of the clown car when the clown car shows up at clown court.  

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Are these hearings recorded or transcribed?  If not, can you bring your own tape/voice recorder, or a court reporter (pricey, I know)?

 

I would think an appellate court would find the magistrate's comments about working together with the JDB to be appalling.  Courts are supposed to be neutral, not biased in favor of one party.

 

The problem is, without some kind of a record of what was said, there is no way to prove this bias on appeal.

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  • 3 weeks later...

I thought the SOL was going to be an ace up my sleeve, But they waited just long enough if they waited another month or 2 I would have been all set.

 

Last payment According to my CR,    Jul. 08' OK        Aug. 08' 30 (day) 

Suit filled on 6/10/14

JDB lists in there summons last date of payment 6/6/08

 

According to the court its within SOL.

 

Again getting back to your statement JDBs lack of standing. Please share the details on your personal experience with getting a case Dismissed in MA, Small Claims Court. What arguments did the JDB try to use what about the Mag. ?????   Did you have to appeal. What Motions did You/They use.

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  • 2 weeks later...

GREAT NEWS !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

I went to the MTC Arb. hearing. Expecting a fun filled day of (Trying not to jump out of my chair and choke the Rent-a-Lawyer)

But instead 3 weeks prior to court the JDB DISMISSED THE CASE WITH PREJUDICE and never informed me

 

So based on what I have seen and others have seen and told about. This could have went in a very different direction. I am so glad it did not.

Maybe my very detailed, spoon feed Arb. paper work did it, Maybe they just did not have the time to pursue me, or most likely they saw Arb. and knew they were done. Or was I just lucky. I'll take it either way.

 

I wish there were more juicy details to report but it was over before it started no drama.

 

I want to Thank all the members who took the time to offer advice and help me get to this point. Everything I said about the Mag. and the court room antics still bother me. I'm just glad I did not have to argue with them in there house.  

 

Special Thanks to      "Skippy1960 & nokb4me"       For putting up with my negative attitude and letting me vent about the whole mess. You have no idea just how much it helped.

 

I hope my experience with this case (Arb. in MA, Small Claims Court) will help others. I know others in Ma have gone through Arb. but there is very little on specifics.

 

So anyone in Ma, wanting Arb. I have a beginning to end accounting of how I got the JDB to dismiss it's case using the Arb. clause. And will gladly share what I did.

 

Again thanks to everyone.             

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  • 1 month later...

GREAT NEWS !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

 

I went to the MTC Arb. hearing. Expecting a fun filled day of (Trying not to jump out of my chair and choke the Rent-a-Lawyer)

But instead 3 weeks prior to court the JDB DISMISSED THE CASE WITH PREJUDICE and never informed me

 

So based on what I have seen and others have seen and told about. This could have went in a very different direction. I am so glad it did not.

Maybe my very detailed, spoon feed Arb. paper work did it, Maybe they just did not have the time to pursue me, or most likely they saw Arb. and knew they were done. Or was I just lucky. I'll take it either way.

 

I wish there were more juicy details to report but it was over before it started no drama.

 

I want to Thank all the members who took the time to offer advice and help me get to this point. Everything I said about the Mag. and the court room antics still bother me. I'm just glad I did not have to argue with them in there house.  

 

Special Thanks to      "Skippy1960 & nokb4me"       For putting up with my negative attitude and letting me vent about the whole mess. You have no idea just how much it helped.

 

I hope my experience with this case (Arb. in MA, Small Claims Court) will help others. I know others in Ma have gone through Arb. but there is very little on specifics.

 

So anyone in Ma, wanting Arb. I have a beginning to end accounting of how I got the JDB to dismiss it's case using the Arb. clause. And will gladly share what I did.

 

Again thanks to everyone.             

 

 

Congratulations @prove-it. A job well done

 

How much was the lawsuit for if I may ask. What credit card?(sorry If there are somewhere but didn't see that)

 

Also,how much did you pay?How much they had to pay?

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Thanks @TomnTex, @MassLady  

 

It was against Waterfront Capital assignee Credit One Bank Schreiber law firm. They sued me for $2,222.73 I filled  MTC Arb. they voluntarily dismissed with prejudice, I waited for the Mag. to sign it stamp it that was it 

 

@prove-it

 

Thanks for the reply. I am really leaning toward arbitration.So I am going to be bothering you soon :)

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Frankly, by now you should have received some type of Opposition from the other side. If you haven't this would mean your motion is un-opposed, and the judge has a better likely hood of having to grant the motion. The court generally will not deny a motion that is unopposed, unless it is outside some civil procedure or statute, that they know about....

Has the other side sent Opposition to your motion??????

@skippy1960

I am searching and reading through all of the arb posts to find an example of what I received in the mail from the Plaintiff's lawyer, and your post here is the closest I've found.

I did receive an Opposition to my MTC, and I don't completely understand what they are trying to do (although I have some ideas) and I'm not sure of the best way to respond.

I followed @Linda7's thread exactly: sent JAMS election notices; then filed MTC contractual arb, along w/my complaint answer (which also included the wrong jurisdiction/contractual arb language).

MTC hearing date is set and agreed upon by both parties, via email from judges chambers.

A few days later I received an OPPOSITION TO DEFENDANTS MOTION TO DISMISS (but I didn't file an MTD, only my complaint answer and the MTC) which states, among other things, that they will call on me to testify under oath about my exhibit B, which is of course, the contract.

I have no idea how to proceed. I've come this far, and I don't want to give up or mess up. But I need help.

Also: Is it bad manners to post my question in someone else's thread, even though it's related? If so, please forgive me. Should I start my own thread in this arbitration forum?

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