Panove4

Midland Funding in AZ

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This not a game to me, I'm experiencing real human STRESSFUL emotions here. I was told that post 101 and 104 is incorrect now you saying I was on the right track. What are you guys doing to me? I'm here for help not confusion.

 

I think you may have taken that the wrong way, and so I'm sorry if you came to that conclusion. There really are many examples  on google. I just thought it might save you time., and I can't post examples or open documents here. I haven't commented much on your motions here, nor have I said they were wrong. You were close in 101 and 104.  Anything I have said (which hasn't been much) I am simply repeating.

 

I know it's stressful and what it causes people to go thru.

 

I told you to look at the motion they gave you (the MSJ). That shows you not only exactly what it should look like but the exact argument that you need to basically say  the opposite of and / or oppose. I reposted Harry's post saying to oppose the msj and file mtc now, something which has been said several times. And I said to read the rules for opposing MSJ's .

 

I only post here to help defendants beat bottom feeders, it's going to be confusing no matter what, and AZ threads are always a complete mess. I am sorry if I confused or offended you, that was never my intention and I meant absolutely no sarcasm in my post to you.

 

I hope it all works out well and I wish you the best of luck.

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I think you may have taken that the wrong way, and so I'm sorry if you came to that conclusion. There really are many examples  on google. I just thought it might save you time., and I can't post examples or open documents here. I haven't commented much on your motions here, nor have I said they were wrong. You were close in 101 and 104.  Anything I have said (which hasn't been much) I am simply repeating.

 

I know it's stressful and what it causes people to go thru.

 

I told you to look at the motion they gave you (the MSJ). That shows you not only exactly what it should look like but the exact argument that you need to basically say  the opposite of and / or oppose. I reposted Harry's post saying to oppose the msj and file mtc now, something which has been said several times. And I said to read the rules for opposing MSJ's .

 

I only post here to help defendants beat bottom feeders, it's going to be confusing no matter what, and AZ threads are always a complete mess. I am sorry if I confused or offended you, that was never my intention and I meant absolutely no sarcasm in my post to you.

 

I hope it all works out well and I wish you the best of luck.

I'm just bawling my eyeballs out because I don't know how to begin. I can basically follow their structure and oppose but I don't know what to put at the top. Is it suppose to say "Motion for Opposition to Motion for Summary Judgement"? I don't know...

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Opposition to summary judgment.

You are opposing the MSJ they filed.

 

You can title it "DEFENDANTS OPPOSITION TO PLAINITFF's MOTION FOR SUMMARY JUDGMENT".

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You can title it "DEFENDANTS OPPOSITION TO PLAINITFF's MOTION FOR SUMMARY JUDGMENT".

Thank you!

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I'm just bawling my eyeballs out because I don't know how to begin.

 

Stop crying, pull yourself together, and fight the right people. I know it's hard. It's not that easy to help people at times. either

 

Begin by opposing the MSJ, YOU NEED TO GET THIS DONE.

 

Also,  a strong opposition to the MSJ is the fact that you are electing and filing a motion to compel arbitration.

 

So you want the MTC ARB in there ASAP as well. If they or the court have a problem with it let them object.

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When you get stressed you will hang up on small details that may not have mattered anyway. Bottom feeders rely on this. Don't help them.

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Add exhibits to your opposition to the MSJ as well as your argument for arbitration:

 

Any letters you sent them asking to arbitrate

 

The terms showing arbitration clause

 

Any letters you sent to the arbitration company if they exist.

 

 

Also, I think you have a rule that says a case is automatically stayed when arbitration is elected. Add that as well.

 

I believe there is case law in favor of arbitration that you may be able to find and put in the opposition to  the MSJ as well. 

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When you get stressed you will hang up on small details that may not have mattered anyway. Bottom feeders rely on this. Don't help them.

 

I'm trying...thanks so much for the encouragement.

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You can look at any basic motion and get an idea what the MTC arbitration should look like.

 

Then just keep it simple and use the same arb argument you have in your MSJ (cut and paste).

 

You are simply asking the court not to rule for plaintiff on the MSJ and to send this to Arbitration.

 

Include the exhibits here as well.

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I'm trying...thanks so much for the encouragement.

 

I know.

 

I figured you were  being helped on PM and this was being handled. I was surprised to see it surface again, and in basically the same place.

 

I don't mean to come down on you either, but you just don't have time for tears or conflicting opinions now.

 

I'm not sure how long you have to respond to a msj, but I would oppose it even if you are late. You don't want to just slop something out either, make it count, just get it done.

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I know.

 

I figured you were  being helped on PM and this was being handled. I was surprised to see it surface again, and in basically the same place.

 

I don't mean to come down on you either, but you just don't have time for tears or conflicting opinions now.

 

I'm not sure how long you have to respond to a msj, but I would oppose it even if you are late. You don't want to just slop something out either, make it count, just get it done.

 

No, no help via pm. Doing it now, has to be filed by Friday.

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 Doing it now, has to be filed by Friday.

 

OK, then you have a little time and I think you know what to do. You are not in too bad of a predicament, at least time wise. You could take 5, "bawl your eyes out" and get it over with, then focus on what needs to get done. Take regular breaks while you are at it and don't burn yourself out.

 

You can do this.

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Is this the right format? It looks better in word doc.

 

 

Defendant Name

Defendant address

Defendant address

Defendant address

Defendant Phone

Defendant email

 

 

MARICOPA COUNTY JUSTICE COURT, ARIZONA

MCDOWELL MOUNTAIN JUSTICE COURT

18380 North 40th Street, Phoenix, AZ 85032

 

 

 

MIDLAND FUNDING LLC,      )     No.
a foreign entity,                       )
                                                )
    Plaintiff,                               )      DEFENDANTS OPPOSITION TO

                                                )      PLAINTIFF’S MOTION FOR

 vs.                                          )      SUMMARY JUDGEMENT)
                                                )

                                                 )

                                                                )

xxxxxx, xxxxxxxx                     )
xxxxxx, xxxxxxxx                     )
                                                )
    Defendants                         )

________________________________________________________________________________________


 

Comes now the Defendant, ....

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@Panove4

 

Here is opposition to MSJ filed by @Harry Seaward.  It will give you an idea of how to draft your opposition.  Relevant details (name, account number, balance, etc.) will need to be changed.

 

Read it carefully in order to assure that other details apply to your lawsuit.  Instead of copying it word for word, try to make it your own.  If you do not understand some sentences or case law, ask us.  You can't effectively argue if you don't understand what you're arguing.

 

You might want to include that the account is subject to arbitration per the cardmember agreement and that you've motioned to compel that process.

 

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona-lost-on-plaintiffs-msj/?p=1263001

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@Panove4

 

Here is opposition to MSJ filed by @Harry Seaward.  It will give you an idea of how to draft your opposition.  Relevant details (name, account number, balance, etc.) will need to be changed.

 

Read it carefully in order to assure that other details apply to your lawsuit.  Instead of copying it word for word, try to make it your own.  If you do not understand some sentences or case law, ask us.  You can't effectively argue if you don't understand what you're arguing.

 

You might want to include that the account is subject to arbitration per the cardmember agreement and that you've motioned to compel that process.

 

http://www.creditinfocenter.com/community/topic/321144-sued-by-jdb-cavalry-in-arizona-lost-on-plaintiffs-msj/?p=1263001

 

Omg! This is so very helpful. I won't copy it word for word as much of it may not apply such as the SOL as I didn't assert that in my answer...wish I did.

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@Panove4

 

 

The SOL argument would not have worked due to the AZ Supreme Court definition of an "open account".  A credit card would not fit into that definition and an argument otherwise would be a waste of time and paper.

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You've seen my opposition so you get the gist of how to put it together.  You see I included a separate statement of facts in my opposition.  This was actually a mistake on my part.  It should have been a "controverting statement of facts" and I should have picked apart their statement of facts line-by-line.  So that's at least one way you can improve over what I did.
 
So just go in chunks.  Sit and write 2 or 3 pages and post the content here for feedback.  While you're waiting, do another 2 or 3 pages.  After 3 or 4 of those cycles, make the suggested changes and post the complete draft for feedback. You can be substantially done with this by tomorrow if you stay with it.
 
As BV80 said,  SOL is off the table.  Arizona has a statue that specifically establishes a 6-year SOL on "credit cards" so even if you could argue this was an open account, it wouldn't matter unless your default was 3 years prior to June 2011 when the statute took effect.

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I have the proof back from the post office.

I read in one post you said in AZ, "a Motion to Compel private contractual arbitration is not proper unless 1.) an agreement/contract has been shown with an arbitration clause; and 2.) one of the parties has refused to arbitrate per the agreement.  A.R.S. 12-1502(A). Midland has not agreed or refused to arbitrate so do I still file the MTC now?

If they ignore your demand, they have refused it. If you have kids (or have even seen them in the wild), you understand this. :-D

Plus, you also received a phone call from Midland and based on your description, it was clear to me they weren't planning to enter into arbitration voluntarily. If that's not a refusal, I don't know what is.

So, yes, file the motion to compel now or with your Opposition, but don't wait until after you file your Opposition.

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MTC completed, is it ok?

 

 

MARICOPA COUNTY JUSTICE COURT, ARIZONA

MCDOWELL MOUNTAIN JUSTICE COURT

18380 North 40th Street, Phoenix, AZ 85032

 

MIDLAND FUNDING LLC,      )     No.
a foreign entity,                       )
                                                )
    Plaintiff,                               )      DEFENDANTS OPPOSITION TO
                                                )      PLAINTIFF’S MOTION FOR

 vs.                                          )      SUMMARY JUDGEMENT)
                                                )
xxxxxx, xxxxxxxx                     )
xxxxxx, xxxxxxxx                     )
                                                )
    Defendants                      
   )


_______________________________________________________________________________________________________________
 

NOW COMES the Defendant(s), pro se, for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

That on or about May 21, 2015, Plaintiff filed its Complaint against Defendant(s).

Defendant(s) sent a letter via certified mail with return receipt to Plaintiff's attorney on August 7, 2015, electing arbitration in regards to the alleged debt. (see Exhibit A and B, attached).


Defendant(s) moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card agreement (see Exhibit C, attached).

The parties are bound by the Credit Card Agreement. The Arbitration Notice states among other things:

RESOLVING A DISPUTE WITH ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

• What claims are subject to arbitration
1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or providers that accept the card or program sponsors if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.


• No Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

• How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law
is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

• How to reject this section
You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this section.

SECTION IV: OTHER IMPORTANT INFORMATION CARECREDIT CREDIT CARD ACCOUNT AGREEMENT

STATE NOTICES

NEW JERSEY RESIDENTS: Certain provisions of this Agreement are subject to applicable law. As a result, they may be void, unenforceable or inapplicable in some jurisdictions. None of these provisions, however, is void, unenforceable or inapplicable in New Jersey.
NEW YORK RESIDENTS: This Agreement will not become effective unless and until you or an authorized user signs a sales slip or memorandum evidencing a purchase or lease of property or services or the payment of a fine by use of your credit card and prior thereto you will not be responsible for any purchase or lease of property or services by use of your credit card after its loss or theft.
TENNESSEE RESIDENTS: This Agreement will not become effective unless and until we have (1) provided the disclosures required pursuant to the federal Truth in Lending Act, (2) you or an authorized user uses the account, and (3) we extend credit to you for that transaction on your account.
WISCONSIN RESIDENTS: No provision of a marital property agreement, a unilateral statement under sec. 766.59, Wis. Stats., or a court decree under sec. 766.70, Wis. Stats., adversely affects the interest of the creditor unless the creditor, prior to the time credit is granted, is furnished a copy of the agreement, statement or decree or has actual knowledge of the adverse provision when the obligation to the creditor is incurred. Married residents of Wisconsin applying for an individual account must give us the name and address of their spouse if the spouse also is a Wisconsin resident, regardless of whether the spouse may use the card. Please provide this information to us at P.O. Box 965033, Orlando, FL 32896-5033.

Your signature on the application or sales slip (or online screen) for the initial purchase approved on this account represents your signature on this Agreement. It is incorporated herein by reference.

We have signed this Agreement as follows:


Margaret Keane
Chairman and CEO
Synchrony Bank



The Defendant(s) elects arbitration to settle this dispute.

WHEREFORE, Defendant(s) moves this Honorable Court to compel private contractual arbitration pursuant to the Credit Card Agreement and to dismiss Plaintiff's complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day August, 19, 2015

XXXXX
XXXXX
XXXXX
XXXXX
Defendant(s), Pro Se



XXXXX
XXXXX
XXXXX
XXXXX
Defendant(s), Pro Se

VERIFICATION BY AFFIDAVIT

Personally appeared before me the undersigned who on oath states the facts set forth is this MOTION TO COMPEL OR STAY ARBITRATION are true and correct to the best of his knowledge and belief.


______________________________
XXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the___day of ____________, 20_____


______________________________
Notary Public

My Commission expires:

___/___/______.



VERIFICATION BY AFFIDAVIT

Personally appeared before me the undersigned who on oath states the facts set forth is this MOTION TO COMPEL OR STAY ARBITRATION are true and correct to the best of his knowledge and belief.


______________________________
XXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the___day of ____________, 20_____


______________________________
Notary Public

My Commission expires:

___/___/______.


I certify that I mailed a copy of this MOTION TO COMPEL OR STAY ARBITRATION to:

XXXX
XXXX
XXXXX
XXXX

By: XXXXXXXXX, Defendant(s), Pro Se
Date: August 19, 2015

 

 

XXXX
XXXX
XXXXX
XXXX

By: XXXXXXXXX, Defendant(s), Pro Se

Date: August 19, 2015

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I was just thinking...should I mention in the MTC that Synchrony Bank is formerly GE Capital Bank?
Also, should I include all pages of the terms and condition as exhibit or just the page about Resolving a dispute with arbitration?

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Looks good. 

 

If you're attaching the agreement as an exhibit to your motion, this is all I would quote in the text of your motion.

 

 

The parties are bound by the Credit Card Agreement. The Arbitration Notice states among other things:


• What claims are subject to arbitration
1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or providers that accept the card or program sponsors if it relates to your account, except as noted below.

 

The agreement then identifies exceptions not applicable to the instant case.

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@Panove4

 

You titled your motion as an opposition to an MSJ.  Isn't it a Motion to Compel Private Contractual Arbitration?

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Looks good. 

 

If you're attaching the agreement as an exhibit to your motion, this is all I would quote in the text of your motion.

ok, will do. Thank you.

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