stefeni074

Jefferson Capital Metabank Fingerhut Arbitration Arizona

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30 minutes ago, Coffee_before_tea said:

  This would suggest that filing a Motion to Dismiss in lieu of an answer is "out of the norm", which is nonsense.  

 S. ALAN COOK, PC v. DERSHOWITZ,  Ariz: Court of Appeals - 2012

The parties agree that dismissal with prejudice was inappropriate. The arbitration provision of the fee agreement is governed by A.R.S. § 12-1502(D) (2003),[5] which provides:

    Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

The proper procedure was to stay the judicial proceeding pending the final arbitration award.  See Broemmer v. Otto, 169 Ariz. 543, 550, 821 P.2d 204, 211 (App. 1991).

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@BV80  Not sure how that counters my point that MTD's are filed all the time, and are normal.  The rules state that a MTD is proper in lieu of an answer, whether the court dismisses or stays the case, it's really irrelevant as long as the Motion to Compel Arbitration is granted.

But that is a good case that backs up my statement that these cases need to be Stayed until the completion of Arbitration, and only having the stay lifted to confirm the final award.

 

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@Coffee_before_teaJust an FYI this was the timeline with LVNV case.. it was a mess and it's kind of in limbo right now.

6/25/15 Received Summons

6/30/15 Defend filed MTD on Acct Not stated - Improper

7/14/15 Judge granted MTD

7/27/15 LVNV Vacate order - reinstate case

7/28/15 Judge granted vacated order

8/10/15 Defend respond to Vacating order - MTD

8/19/15 LVNV respond ask court deny MTD again

8/21/15 Judge set a Pretrial Conf for 9/21/15

8/25/15 LVNV Request telephonic hearing

9/21/15 Pretrial Conf held - Both Maintain sides

9/22/15 Judge order Defend file Answer w/in 20 days

10/9/15 Defend file answer and Elect Arbitration

LVNV does not respond

12/22/15 Defend files MTC and hearing requested.

NO response from court or LVNV

On my next case I went for a MTD/MTC combined with Midland.. this is in appeal.  I have a thread on that one. (I'm hoping to get the MTC)

It's kind of hit and miss with these cases in Pinal.. the judge stated he didn't have much experience with debt cases during my first case.  

I am really undecided which way to move forward.. my first reasoning was that I didn't want to waive my right to elect arbitration and come straight out and try to get it moved there in the first place with the no jurisdiction. 

 

 

 

 

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22 minutes ago, stefeni074 said:

my first reasoning was that I didn't want to waive my right to elect arbitration

The only way you could do this 'inadvertently' is by participating in significant litigation. Filing an answer and motion to compel doesn't come anywhere close to that. 

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1 hour ago, Harry Seaward said:

It also demonstrates that a motion to dismiss is not an appropriate path when trying to get a case into arbitration. 

No, it shows that it is appropriate is to stay the case, and not dismiss the case when a MTD & MTC Arb is filed.  It says nothing about filing a MTD and MTC Arb, and in the alternative Stay and Compel Arb.  As with anything in the legal system, if you don't ask for it, you won't get it handed to you.

By filing MTD it allows you to stop the case moving forward through the courts, as per the rules of civil procedure.  Otherwise, simply filing a MTC Arb is not allowed, unless you include it with a MTD.

Besides you may get lucky and a judge may still dismiss the action, and compel arbitration.   The JDB would be the one appealing at that point (which they likely won't do).

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32 minutes ago, Coffee_before_tea said:

it shows that it is appropriate is to stay the case, and not dismiss the case when a MTD & MTC Arb is filed.

If it's appropriate to not dismiss the case, why would you bother filing a MTD instead of an Answer?

33 minutes ago, Coffee_before_tea said:

Otherwise, simply filing a MTC Arb is not allowed, unless you include it with a MTD.

Or, more appropriately, an Answer.

34 minutes ago, Coffee_before_tea said:

Besides you may get lucky and a judge may still dismiss the action, and compel arbitration.

If the judge dismisses the action, there is no jurisdiction so he/she cannot also compel arbitration.

40 minutes ago, Coffee_before_tea said:

(which they likely won't do).

Midland has appealed justice court cases here that didn't go their way.

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1 hour ago, Coffee_before_tea said:

 Otherwise, simply filing a MTC Arb is not allowed, unless you include it with a MTD.

What rule says a MTC is not allowed unless it's included with a MTD?    Since  the proper procedure is to stay the proceedings, how is a MTD even necessary?

12-1502(D):

D. Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only.

Freedom Pro Baseball League, LC v. King, AZ Court of Appeals, 2015

"Pursuant to A.R.S. § 12-3007(F), in ordering arbitration the trial court was required to stay the case; it did not have the authority to dismiss it. See also A.R.S. § 12-1502(D) (requiring a court ordering arbitration to stay, not dismiss, a proceeding)."

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10 hours ago, Harry Seaward said:

If it's appropriate to not dismiss the case, why would you bother filing a MTD instead of an Answer?

Because I don't want to give the court any subject matter jurisdiction, nor do I want to attempt to defend a Summary Judgment (which will be coming), if you file an answer.

 

10 hours ago, Harry Seaward said:

Or, more appropriately, an Answer.

A MTD is allowed in lieu of an answer, your AZ RCP, you should know them.   Why open yourself up to potential grief and litigation by filing an answer?

10 hours ago, Harry Seaward said:

If the judge dismisses the action, there is no jurisdiction so he/she cannot also compel arbitration.

What?  Where did you get this?  An order dismissing a legal action for lack of subject matter jurisdiction, and at the same time compelling private arbitration, are wholly part of the judges discretion and capacity.

10 hours ago, Harry Seaward said:

Midland has appealed justice court cases here that didn't go their way.

I doubt they would appeal a dismissal of a case, after a Motion to Compel Arbitration was granted, and staring them in the face.  There is really no point, as the Court has ordered them to arbitrate.   They 'might', but, it doesn't make financial sense to do so.

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10 hours ago, BV80 said:

What rule says a MTC is not allowed unless it's included with a MTD?    Since  the proper procedure is to stay the proceedings, how is a MTD even necessary?

According to the AZ RCP, one of the appropriate motions in lieu of filing an Answer, is a MTD.  It remains silent on a MTC Arb, which means it isn't allowed.

 

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If for any reason, this is the nightmare scenario of the AZ courts in action.

You can say this was "not typical", but it happened and it's on record.  I hope it's a cautionary tale of future AZ defendants to take charge of their cases.   This clearly shows how inept, corrupt, and silly the AZ courts are.  I personally, would avoid them at all costs.

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1 hour ago, Coffee_before_tea said:

According to the AZ RCP, one of the appropriate motions in lieu of filing an Answer, is a MTD.  It remains silent on a MTC Arb, which means it isn't allowed.

 

The courts have ruled that dismissal is improper.  So exactly what would be the purpose of requiring a MTD when the court can't dismiss?  Please show us in the AZ arbitration statutes where a MTD is required to be filed with a motion compelling arbitration.

Also, what would be the reason claimed in a MTD?

 

Quote

Because I don't want to give the court any subject matter jurisdiction, nor do I want to attempt to defend a Summary Judgment (which will be coming), if you file an answer.

Lac Vieux Desert Bank of Lake Superior Chippewa Indians Holdings Mexico, LLC v. Cardona (AZ Court of Appeals, 2013)


"Defendants assert, as part of their jurisdiction argument, that any dispute was subject, first and foremost, to arbitration. Defendants assert that the trial court should have enforced the arbitration clause and dismissed the matter and that the arbitration agreement "stripped" Arizona of subject matter jurisdiction."

"We agree that the assertion that Arizona lacks subject matter jurisdiction due to the existence of an arbitration agreement is, indeed, 'absurd.'

If GRH wishes to compel arbitration it may file a motion with the trial court. See A.R.S. § 12-1502(A) (2003). The trial court's review on a motion to compel arbitration is limited to the determination as to whether an arbitration agreement exists under the facts of this case and does not implicate the case's merits. See A.R.S. § 12-1502(A)-(B); Foy v. Thorp, 186 Ariz. 151, 153-54, 920 P.2d 31, 33-34 (App. 1996). The trial court may then enter a stay of the proceedings as required by A.R.S. § 12-1502(D)."

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2 hours ago, Coffee_before_tea said:

A MTD is allowed in lieu of an answer

Yes, when appropriate. You can divert and ignore that all you want. It doesn't change the fact that a motion to dismiss is not the right approach to arbitration.

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4 hours ago, Coffee_before_tea said:

According to the AZ RCP, one of the appropriate motions in lieu of filing an Answer, is a MTD.  It remains silent on a MTC Arb, which means it isn't allowed.

 

There is nothing that says the MTD is supposed to be filed with a MTC.

I can't figure out where this idea came from but it's just wrong. A MTD has very specific parameters wherein the court is supposed to assume everything in a Plaintiff's complaint is true when deciding on a MTD. Not a path I'd want to take. 

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11 minutes ago, Harry Seaward said:

There is nothing that says the MTD is supposed to be filed with a MTC.

I can't figure out where this idea came from but it's just wrong. A MTD has very specific parameters wherein the court is supposed to assume everything in a Plaintiff's complaint is true when deciding on a MTD. Not a path I'd want to take. 

Exactly.   A 12(b) motion to dismiss tests the sufficiency of the complaint and has nothing to do with whether or not there's a valid agreement to arbitrate.

 When adjudicating a Rule 12(b)(6) motion to dismiss, Arizona courts look only to the pleading itself and consider the well-pled factual allegations contained therein. See, e.g., Dressler v. Morrison, 212 Ariz. 279, 281 ¶ 11, 130 P.3d 978, 980 (2006); Long v. Ariz. Portland Cement Co., 89 Ariz. 366, 367-68, 362 P.2d 741, 742 (1961). Courts must also assume the truth of the well-pled factual allegations and indulge all reasonable inferences therefrom. Doe ex rel. Doe v. State, 200 Ariz. 174, 175 ¶ 2, 24 P.3d 1269, 1270 (2001); Long, 89 Ariz. at 367, 362 P.2d at 742. 

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@BV80 thanks, I missed that. It makes sense the court has to have jurisdiction staying the case otherwise arb awards couldn't be enforced and biased arbitrator awards overturned without a party paying to start a whole new court case.

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You guys are cute.
 

Quote

 

Rule 116  - Filing a response to a complaint

(2) A motion to dismiss the complaint. A motion to dismiss on the following grounds may be made under this rule before an answer is filed:
(i) A motion to dismiss for lack of jurisdiction (“jurisdiction”) is the authority of the court over the subject matter of the lawsuit and over a defendant);
(ii) A motion to dismiss for improper venue (“venue”) is the location of the court in which the lawsuit was filed);
(iii) A motion to dismiss for improper service of the summons and complaint;
(iv) A motion to dismiss because the complaint does not state a valid claim, even if the facts alleged in the complaint are assumed to be true. 

 

Let's follow the logic here:
-  IF you file a MTC in lieu of an answer, then it does not comport with the rules
-  Then, if you want to file a MTC, and you want it to conform to the above rules, then you must file it as an alternative prayer along with a MTD.
-  Your options to conform with the rules are:  1)  File an Answer and MTC.  Or 2) File a MTD and MTC.  The alternative pleading can be to stay the proceedings.  Lawyers do this all the time.

4 hours ago, BV80 said:

The courts have ruled that dismissal is improper.  So exactly what would be the purpose of requiring a MTD when the court can't dismiss?  Please show us in the AZ arbitration statutes where a MTD is required to be filed with a motion compelling arbitration.

Dismissal is improper if the Court Compels Arbitration; otherwise, it can dismiss the case.

Broemmer v. Otto, 821 P. 2d 204 - Ariz: Court of Appeals, 1st Div., Dept. C 1991

Quote

ASP, later joined by Otto, filed a motion to dismiss for lack of subject matter jurisdiction, or alternatively, to compel arbitration. The trial court granted the motion to dismiss

The statute requires a stay order only if the court has ordered arbitration or an application has been made for arbitration. Broemmer did not request arbitration. ASP and Otto requested arbitration only as an alternative to dismissal. The judgment granted dismissal and did not order arbitration.

Payne v. Pennzoil Corp., 672 P. 2d 1322 - Ariz: Court of Appeals, 2nd Div. 1983

The Payne case also contends that if an exclusive remedy outside the courts, such as Arbitration, that it's appropriate to dismiss for lack of subject matter jurisdiction.

23 minutes ago, BV80 said:

@CCRP626

I posted a ruling a few posts back.  Lac Vieux Desert Bank of Lake Superior Chippewa Indians Holdings Mexico, LLC v. Cardona (AZ Court of Appeals, 2013)

The Lac Vieux case cannot be cited as authoritative.  

There is nothing wrong with filing a MTD w/ a MTC arb in the alternative.  BV & Harry seem to think that this is an abnormal legal practice, which it is not.  In fact, it's a well practiced legal strategy.  Given the state of disarray of the AZ courts and the AZ threads on CIC, it's no wonder that the cases from AZ are so discombobulated.

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The courts have limited jurisdiction.  They have jurisdiction to determine if there is a valid arbitration agreement in place, and that the claims fall within said Arbitration agreement.  Other than that, the only other jurisdiction they have is to Compel an unwilling participant to Arbitrate, and to confirm the final Award.  Adjudicating the facts of the case is not within their jurisdictional scope.

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One thing I think should be looked at is most of the threads posted on the board are credit card governed by the FAA which overrules state law. That's what has to be followed and stay the proceedings is what it authorizes.

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26 minutes ago, Coffee_before_tea said:

 IF you file a MTC in lieu of an answer, then it does not comport with the rules

It comports with AZ statutes.

27 minutes ago, Coffee_before_tea said:

Then, if you want to file a MTC, and you want it to conform to the above rules, then you must file it as an alternative prayer along with a MTD.

Cite the rule or case law.

In any case, you would title such a motion as  Motion to Dismiss OR in the Alternative Stay the Proceedings and Compel Arbitration.

It's one or the other.  That shows right there that a MTD is not required.

29 minutes ago, Coffee_before_tea said:

The Payne case also contends that if an exclusive remedy outside the courts, such as Arbitration, that it's appropriate to dismiss for lack of subject matter jurisdiction.

The court did not compel the parties to arbitrate, did it? 

31 minutes ago, Coffee_before_tea said:

The Lac Vieux case cannot be cited as authoritative.  

 No, it can't.   But if the issue were appealed, I'm thinking the appellate court would pay attention to its own ruling.

 

33 minutes ago, Coffee_before_tea said:

There is nothing wrong with filing a MTD w/ a MTC arb in the alternative.  BV & Harry seem to think that this is an abnormal legal practice, which it is not.

Neither Harry nor I ever made such a claim.  You are the one who claimed a MTD must be filed with a MTC yet have cited no rule, statute, or precedent to support your claim.

Here's an AZ case in which the defendants filed a MTC but no MTD.  The court didn't seem to have a problem with it.

PC Onsite, LLC v. Massage EN V, LLC (AZ Court of Appeals, 2011)

"Instead of filing an answer, Defendants filed a motion to compel arbitration."

"For the reasons set forth above, we affirm the trial court's order compelling arbitration and award Defendants their costs."

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