craneguy

Going to battle with Midland in AZ

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Recieved papers today Plaintiff sent in request for summary judgement for Orme School v. Reeves. Not sure on my next step i filed for motion to dismiss to elect arbitration a few weeks ago.

You shouldn't have filed a motion to dismiss.  It was supposed to be a motion to compel arbitration per the credit card agreement.

 

But regardless of that, you sent a letter to Midland on July 12.  Please post the contents of that letter.

Also, please post the contents of the motion you filed with the court.  If this was not worded as a motion asking the court to order the parties into arbitration the automatic stay was not triggered and you need to file a proper motion to compel RIGHT NOW because as far as the court is concerned, Midland was free to continue litigation if what you filed wasn't a 12-1502(A ) motion to compel.

 

On top of everything else, you now need to file an objection to the MSJ.  IMO, your primary argument should be that you have filed a motion to compel (because you're going to do that RIGHT NOW, right?) with includes an automatic stay.  Cite Arizona Revised Statutes 12-1502(A ) in the motion to compel and 12-1502 (D ) in the opposition to MSJ.  Read both of the please, so you understand what you're citing.

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You shouldn't have filed a motion to dismiss.  It was supposed to be a motion to compel arbitration per the credit card agreement.

 

But regardless of that, you sent a letter to Midland on July 12.  Please post the contents of that letter.

Also, please post the contents of the motion you filed with the court.  If this was not worded as a motion asking the court to order the parties into arbitration the automatic stay was not triggered and you need to file a proper motion to compel RIGHT NOW because as far as the court is concerned, Midland was free to continue litigation if what you filed wasn't a 12-1502(A ) motion to compel.

 

On top of everything else, you now need to file an objection to the MSJ.  IMO, your primary argument should be that you have filed a motion to compel (because you're going to do that RIGHT NOW, right?) with includes an automatic stay.  Cite Arizona Revised Statutes 12-1502(A ) in the motion to compel and 12-1502 (D ) in the opposition to MSJ.  Read both of the please, so you understand what you're citing.

 I'm hoping that the OP filed a motion to compel arb asking the court ot "either" stay the proceedings or dismiss the proceedings after granting arb motion. It appear's that if this is so then court has declined to order arbitration and is proceeding........an appeal of the denial of arb might be in order....if the time to do so has not run it's course...............denial of arbitration is a matter of jurisdiction, either the courts or the arbitrator and is usually a matter of the proper venue..............an appealable action done by the court (denial is appealable in OK at least)....., but this is AZ and any should of, could of's are up for grabs.....

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 I'm hoping that the OP filed a motion to compel arb asking the court ot "either" stay the proceedings or dismiss the proceedings after granting arb motion. It appear's that if this is so then court has declined to order arbitration and is proceeding........an appeal of the denial of arb might be in order....if the time to do so has not run it's course...............denial of arbitration is a matter of jurisdiction, either the courts or the arbitrator and is usually a matter of the proper venue..............an appealable action done by the court (denial is appealable in OK at least)....., but this is AZ and any should of, could of's are up for grabs.....

 

I should have held my tongue until I had a chance to see what exactly craneguy asked for in his motion.  I too am hoping the language was clear enough that the court (and appellate court) will understand it was first and foremost a motion to compel arbitration because, as you pointed out, denial of a motion to compel arbitration is not interlocutory and IS immediately appealable here.  But only if it was clearly a motion (or even if it could be construed as an "application", as the statute says) to compel (order) arbitration.

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I should have held my tongue until I had a chance to see what exactly craneguy asked for in his motion.  I too am hoping the language was clear enough that the court (and appellate court) will understand it was first and foremost a motion to compel arbitration because, as you pointed out, denial of a motion to compel arbitration is not interlocutory and IS immediately appealable here.  But only if it was clearly a motion (or even if it could be construed as an "application", as the statute says) to compel (order) arbitration.

 

Glad you clarified that it is also appealable in AZ...............wasn't really sure with AZ such a creditor "friendly" state.

 

 

Note:

That's why my appeal here is a little complex when the hearing on the motion for arb and MSJ are held in same hearing.......still haven't heard back from them yet on mine...been officially assigned to Appeal Court since 18 May......

 

Maybe they can't decide if they need to rule on arb or on MSJ...........or both.....LOL. Can't believe my judge here would hold the arb hearing and MSJ same day.....kinda of a denial of due process as the status of jurisdiction (and right to even be able  to file/hear MSJ ) was a pending action not yet decided (officially that is, obviously judge knew what he was going to do) eliminating my exercise of the rights of appeal on that action alone.

 

Seems something is up on P. Scott Lowery bunch.....apparently the CACH attorney's (husband and wife doing my case) address has been changed in Court from T town here back to their Colorado address. Skipping town so to say? Or are they not making much headway collecting here? Bringing them in for closer supervision, long drive from Denver to most of OK for court appearances.....? Inquiring minds would love to know!

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Write an opposition to it.  In your opposition state you have elected private contractual arbitration per the governing agreement, and your motion has not been heard. 

call the court, find out when your motion will be heard, or schedule a hearing for it if you need to.

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Would i of been notified somehow if the motion was denied, or do i just get a pretrial date.

The court has to rule on your motion eventually and notify you of the ruling. Did Bursey file a response to your motion? If you filed it in mid-July then it is coming up on 60 days pretty soon. Your case reminds me of azwildman's case where shortly after filing a motion to compel, midland slips in a summary judgment motion. The law may support the court being required to rule on your motion first before ruling on their summary judgment motion. Maybe others will suggest how to make that argument. I'm not sure how to make it.

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The minute your motion to compel is filed there is an automatic statutory stay of proceedings.

 

The judge can deny your motion to compel and immediately grant the MSJ (in that order), but the only legitimate grounds for denying a motion to compel is if he finds there is no agreement between the parties to arbitrate or the party that filed the motion to compel previously waived is right to arbitrate. 

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The judge can deny your motion to compel and immediately grant the MSJ (in that order)

If the judge denies the motion to compel and at this exact moment the stay is effectively lifted, shouldn't the judge have to allow 30 days from the time the stay is lifted for craneguy to respond? Maybe even argue that their motion for summary judgment is improper for having been filed while there is a stay and that they should have to refile it when there is not a stay. Otherwise they are being rewarded for having violated the stay. I don't know if there is caselaw about motions made during a stay or about penalties for violating a stay.

The stay language in the arbitration statue isn't as clearly automatic as it is in the bankruptcy code.

The arbitration statue requires a stay but the court might have to order the stay.

The automatic stay in 11 U.S. Code § 362 comes into effect instantly when the debtor files a bankruptcy case without the need for any court order.

 

11 U.S. Code § 362 - Automatic stay
A petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) ... operates as a stay
 
The arbitration statue says 'shall be stayed'. 'Operates as a stay' seems more automatic.
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What would previously wave your right to arb.

Proceeding at all times in opposition to arbitration and/or significant participation in litigation.

 

An appellate court here in AZ ruled that filing an answer and disclosure statement,  and allowing yourself to be deposed wasn't enough to constitute waiver. 

 

"Here, the only activity that has occurred since Staley answered the petition is that he filed a disclosure statement and was deposed. We find that such limited discovery, even though generally unavailable in arbitration, fails to show sufficient prejudice to warrant finding waiver."

Matter of Noel R. Shahan Trust, 932 P. 2d 1345
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If the judge denies the motion to compel and at this exact moment the stay is effectively lifted, shouldn't the judge have to allow 30 days from the time the stay is lifted for craneguy to respond? Maybe even argue that their motion for summary judgment is improper for having been filed while there is a stay and that they should have to refile it when there is not a stay. Otherwise they are being rewarded for having violated the stay. I don't know if there is caselaw about motions made during a stay or about penalties for violating a stay.

In this case, the motion to compel was filed after the MSJ.  I would certainly argue the stay should include times for any deadlines, but I haven't seen any caselaw for this so persuading a judge would amount to just plan convincing a judge to see it your way. 

 

Edit: I meant to say that just because the MtC followed the MSJ, whatever time was left to oppose the MSJ when the MtC was filed should still be left in the event the court denies the MtC.  Again,  no caselaw that I know of.  Just seems common sense to me. 

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Have some new info im a little lost on. My case kind of stalled out, about a month ago plaintiff filed a motion to ask status of case since there motion for judgement was denied. And recieved papers today where they filed to vacate a minute entry that court added on its own the court interjected the CFPD consumer financial protection bureau, and showed a bunch of case law on how the court cant do that. Because it will effect all their future cases and cost extra money. I have 10 days to respond not sure what to make of this.

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received papers today where they filed to vacate a minute entry that court added on its own the court interjected the CFPD consumer financial protection bureau, and showed a bunch of case law on how the court cant do that. Because it will effect all their future cases and cost extra money. I have 10 days to respond not sure what to make of this.

Word of the cfpb consent order has spread to many JPs throughout the az justice court system.

I haven't heard of JPs doing sua sponte cfpb minute entries though. What is the text of the minute entry? What sort of motion was made in objection? Send me a redacted copy if you have it scanned.

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I would presume you can object to the Plaintiffs attempt to vacate the minute entry.  If you can do so, then definitely do.  The CFPB order finds the business practices of Midland suspect, and untrustworthy.  This is a matter of public record, and public policy regarding consumer protection.

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I dont have it scanned, i guess the court added the entry in their own. And from what im reading its good for me because they submitted about 10 pages of case law why it wasnt allowed.Ive just been stating the fact for arbitration per the contract.

It is good for you, although I'm still not clear what is contained in the minute entry. The court probably added similar minute entries to many cases. I'll check some cases.

You can file a response in opposition to their motion to vacate the minute entry. What is the status of your motion to compel? Has it been pending for 6+ months? Their motion for summary judgment was denied, yes?

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