stefeni074

Arizona Justice Court Midland Citibank elected Arbitration MTD/MTC

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"Interlocutory" just means the order in question is non-final in nature. Generally you cannot appeal non-final (or non-dispositive) orders, but rulings regarding arbitration are special, so they are expressly allowed by statue  (A.R.S. 12-2101.01, I belive) to be appealed before the case concludes. 

In my mind, this is such a simple appeal that you can use the form  (that I'm normally not a fan of,  BTW). Just be sure you ask for your costs on appeal. The appellate court cannot order Midland to pay your costs if you don't ask for it in your appellate memorandum. 

Everything in Justice  Court goes into a "freeze frame" while the appeal is underway. If the justice court ruling is affirmed by the appellate court or you abandon your appeal you simply pick up in justice court where you left off.

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I looked up the citation,  A.R.S. 12-2101.01 A(1) An order denying an application to compel arbitration made under section A.R.S. 12-1502. Thanks for clearing that up.  So I don't actually state it is an interlocutory appeal I just cite the statute pertaining to the reason for appeal, or should I to make it clear that it is a special appeal. I will probably prepare the doc as I have the previous docs, Is there any other citations that I would need to add besides the 12-2101.01 a(1).  

 

 

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Midland will probably argue you can't appeal an interlocutory order so I would nip that in the bud and cite 12-2101.01 (a)(1) along with 12-1502 and 12-1501 (<--- defines a valid agreement to arbitrate) in your appeal memo.

There is a 15 page limit on Justice Court appeals. I can't imagine you'll come anywhere near that, but just letting you know.

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I went to the Justice Court on 2/11 one day before my 14 day window to file an appeal. The court clerk refused to take my appeal and said that it didn't follow the "rules".  I said it was following the ARS 12-2101.01 from the denial of my MTD or in the alternative MTC. 12-1502.  She said that was not allowed because I didn't submit an answer yet, I said I didn't submit an answer because I filed a MTD with a MTC. She took my appeal to the judge, and I asked her to look up the 12-2101.01 appeal statute.  She said they don't follow statutes they go by the rules and it isn't in the rules.  Wow, I have never seen such incompetence.  She tried to give my appeal back and I asked her to have the judge review it again. I asked her to date stamp it and if she was going to sign it. She said no because  she was not going to submit it until the judge did some research on it and they would call me 2/12 or by 2/16 which would be over the 14 day filing time.  I am sure they will continue to refuse my appeal.  I have absolutely zero confidence in this court. 

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Just a quick update, the court clerk called me back and said they are filing my appeal and they haved mailed the notice to Midland attorneys. I asked her about the filing fees and cost bond. She said at this time there isn't a judgment so I don't owe a cost bond and that they are not requiring a filing fee for the appeal. I told her I had the forms that I tried to submit yesterday with my appeal, the defer or waiver of cost and fees and also the application for the waiver or defer of cost and fees. She said they didn't need them as of now there are not cost or fees.  I also asked about filing the Designation of record on appeal form, the ordering of trial records. But, since there was not a trial there are no records to order and she said that I didn't need to submit that form requesting any documents because they will send all the court docs with the appeal.  Lastly, I asked to be clear the only thing I need to do next is to file my "memorandum" with the court, she said yes I have 60 days.  I was relieved but also feel unsure because they have not been very trusting.   

I will begin working on my memorandum and if any one has any extra pointers that would be appreciated.  Thank you in advance!

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Unreal...  Glad you got the notice filed.  That's the most critical time line event. 

For your memo,  cite the relevant statutes, what you filed and the court's orders in the record. It's not like the lower court has an opportunity to respond to whatever you file so whatever was written in the orders is all the appellate court can go on.

Link your motion to compel and motion to dismiss as a single, inseparable disjunctive filing wherein the court had to either grant/deny the MTD or the MTC. There was no option to deny the MTD but not rule on the MTC, so a denied MTD is the equivalent of a denied MTC. Then make a point that the only grounds for denying a MTC is if the court finds there is no agreement between the parties to arbitrate (12-1502). Make a point that Midland never denied there was an agreement to arbitrate and their only contention was that you did not properly authenticate the agreement you provided.  While authentication is not implied in ARS 12-1501 or 1502, on a showing of good faith, you subsequently submitted an affidavit authenticating the agreement as the proper agreement for the underlying debt. The court never stated it believed the agreement was not controlling, and therefore committed an error of law when it denied your motion to compel. 

That's how I would argue it. 

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@Harry Seaward  What's the avenue to submit complaints about the Court Clerks & Judges?  They seem to not follow the legal framework in almost every case we see from AZ.    All I could find is this:  http://www.azcourts.gov/azcjc/How-to-File-a-Complaint

Not recommending this during a proceeding, but afterwards, something has to get the AZ courts & judges to follow the rules.

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Justice's of the Peace aren't required to have any sort of education to be elected.  Us Arizonians have decided we want it this way and these kinds of outcomes are predictable as a result.  Any complaint will be responded to as "hey, what do you want from me?  I'm not a lawyer and it wasn't intentional." and I imagine whatever agency doing the investigating will rubber stamp the case as resolved.

I would certainly encourage anyone affected by these seemingly arbitrary rulings to file a complaint, but I would follow the established path of appeals first and only file a complaint if the appellate court reverses the lower court's ruling. 

We have a "special action" available to us here, but only when there is no established path of appeal.  This is a direct plea to the CoA or AZ Supreme Court to take corrective action against some person or entity against which there are no other methods of resolving disputes.

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I am submitting my Memorandum on Monday.. but after reviewing all the docs.. I think I made a very big error when I submitted my MTD/MTC and I'm not sure if it is fixable. The plaintiff did not cite this mistake but it may come up when I submit my Memorandum.  I had cited A.R.S. 12-1502(B) instead of A.R.S. 12-1502(A).  I had asked the court to Stay the arbitration. Not Compel.  So in that regard I think my appeal will be denied.  In which case, it goes back to the JC and will I have the option to then Answer the original complaint.  I am so mad at myself at this point.. such overlooked mistakes.. any response or ideas are appreciated.. @Harry Seaward @Coffee_before_tea

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I had filed the MTD Dec 24, 2015.  The title didn't include MTC, I had included it in the alternative of denying my dismissal. Midland responded to my "combined" motion and answered the card agreement was not admissable.  I responded with an attached affidavit regarding the agreement.  

MTD REVISED RESPONSE 1-12-16 .pdf

MTD SB CV2015-0605 12-23-15.pdf

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@stefeni074

I'm not an attorney, but I don't believe that the failure to include "compel arbitration" in the title wouldn't be a problem.  The court will look at the body of the document.

For instance, the court can rule upon an untimely "Motion to Dismiss" as a "Motion for Summary Judgment" based upon the contents of the motion.

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My concern is that I mis-cited my MTC as 12-1502(b) which is stay an abitration, instead of (a) to compel arbitration.  But it clearly states in the body of my document that I requested to either dismiss and or compel arbitration.  Well, the only thing to do is just correct citations in my memorandum and go from there. 

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In my conclusion can I request that the MTC be upheld to send into arbitration.  Or if the appeal is granted that it will just go back to the lower court and rule on the MTD/MTC once again.  Also, is there a specific citation to ask for award on cost for appeal. 

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27 minutes ago, stefeni074 said:

But it clearly states in the body of my document that I requested to either dismiss and or compel arbitration.

You're probably ok.  Just correct the citation in your appellate memorandum.

4 minutes ago, stefeni074 said:

In my conclusion can I request that the MTC be upheld to send into arbitration.  Or if the appeal is granted that it will just go back to the lower court and rule on the MTD/MTC once again.  Also, is there a specific citation to ask for award on cost for appeal. 

Your appeal is that the court committed an error of law when it denied your MTC.  If the appellate court agrees with you, it will reverse this ruling (in essence it will be ordering the JC to grant the MTC) and send the case back to JC for further proceedings.

I don't know if you found it, but these are the court rules for your appeal:
https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=NAC1340C0715611DAA16E8D4AC7636430&transitionType=CategoryPageItem&contextData=%28sc.Default%29
Rule 13 talks about Costs.

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I have received a response from Midland about my Appeal.  They have asked to settle for an amount that would be acceptable if I agree to withdraw my appeal.  They would file a notice of settlement with the court and ask for dismissal with prejudice upon clearance of payment.  They would like me to contact them asap.. what is the best way to get this done to make sure it is only the amount and not more that would include other costs.. lawyer fees and court costs.  It is stated one lump some of 150.  Which is much lower than what they wanted originally.. or even less than arbitration costs.. and appeal.  Do I need to have something written on my end?  @Harry Seaward @Coffee_before_tea @debtzapper  Thank you!

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They're asking you to pay them? If you pay them they can leave the account on your credit report as "settled".

I'd tell them to pound sand. I wouldn't pay them a dime unless they agree to remove the account from all of your your reports,  never communicate it ever again and never sell it.

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If I call and state that is what I would like for them to do and as a condition to have them put it in writing in the Motion to Dismiss with prejudice as the terms of settlement. Should I ask to have them produce the Motion first and then pay the settlement.  I'm not sure how this should be done. 

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