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Jefferson Capital Metabank Fingerhut Arbitration Arizona


stefeni074
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@Coffee_before_tea I had trouble accessing that link, got to it in internet archive if anyone else is having issues-

It's pro-stay, anti dismiss and lays out why that makes sense. You'll also notice the FAA is written the same way. There's little need to dismiss when the FAA appeals process favors stays and arbitration but has no allowance for a party trying to halt a stay or compelling arb. The court case can't move forward. It's going to get dismissed anyways after the JDB plaintiff has shown they won't arb. They don't get to have their day in court.

 

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22 minutes ago, CCRP626 said:

@Coffee_before_tea I had trouble accessing that link, got to it in internet archive if anyone else is having issues-

It's pro-stay, anti dismiss and lays out why that makes sense. You'll also notice the FAA is written the same way. There's little need to dismiss when the FAA appeals process favors stays and arbitration but has no allowance for a party trying to halt a stay or compelling arb. The court case can't move forward. It's going to get dismissed anyways after the JDB plaintiff has shown they won't arb. They don't get to have their day in court.

 

Precisely.   BTW, the 9th Circuit and AZ federal courts stay the proceedings as required by 9 U.S.C. § 3 of the FAA.  The same is required by AZ statutes.

See IATSE v. INSYNC Show Productions, Inc.  Court of Appeals, 9th Circuit, 2015

See Photo v. Pearson Education, Inc., Dist. Court AZ, 2011

 

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58 minutes ago, BV80 said:

It comports with AZ statutes.

Not in relation to "answering a complaint".

58 minutes ago, BV80 said:

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.

I cited the rule, and it says that a MTD is allowed, and remains silent on a MTC, which means in most all legal realms, that it is not allowed.  Legislative intent and all that...

I see you're arguing just to argue...

1 hour ago, BV80 said:

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

No, but the court had the choice in dismissing OR compelling arbitration.  

1 hour ago, BV80 said:

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

Well, I hope they don't pay attention to the "authoritative" rulings in Broemmer & Payne, they might confuse themselves.

1 hour ago, BV80 said:

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.

I cited the rule above.  Just because certain judges don't care about the rules or procedures, doesn't mean it comports with the ARCP.  The rules of civil procedure supports my claim.  This claim is one that Harry has also made in order to comply with the "rules".   

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36 minutes ago, Harry Seaward said:

This sounds like an argument Midland would use....  

"Rules and statutes be damned! We saw someone else do this so it must be proper!"

I guess it's ok when it's a CIC'er trying it though.

Can you point out where it's not a well practiced legal strategy?  In both the Payne & Broemmer cases, they used this exact strategy, and I'm sure they had a team of lawyers that were smarter than you or I.  

What rules & statues have I damned by what I've stated?

Here is a post by you, that says essentially the same thing:

 

Specifically:  
 

Quote

What I suggest is to send a certified letter to PRA's attorney demanding arbitration. Then file with the court a motion to dismiss (request a hearing in the motion) on the grounds that the court has no subject matter jurisdiction and attach a copy of the letter you sent PRA.

AND

Quote

You could file an answer instead of a MTD but then a subsequent motion to dismiss on jurisdictional grounds would technically not be proper, unless you became aware of some information after you filed your answer that created a challenge to the jurisdiction.  I know people do it this way and the court would probably allow it, but you run a risk of being accused of participating in significant litigation and having the court find you waived your right to arbitrate.  This would be an appealable ruling and, IMO, stands a good chance of getting reversed, but it would be a huge headache and you'd be looking at $500-$750 out of pocket to appeal.  If it were me, I would just file the MTD with the arbitration demand letter and card agreement attached.

It is election season, so I guess flip flopping is to be expected...

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The template arb motion for sometime was Motion to Dismiss or in the Alternative Stay the Proceedings and Compel Arbitration. Seemed to work pretty much everywhere except didn't it start confusing Arizona judges so it got modified to a simpler choice but I don't remember what the foolproof one for Arizona judges was. I think @Harry Seaward mentioned this recently?

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Apparently you don't know what flip-flopping means. Hint: it's the opposite of the examples you used. 

 

38 minutes ago, Coffee_before_tea said:

Here's another case where an unlucky AZ Defendant filed an Answer along with a MTC Arb, and it got all messed up by the AZ courts & judges

Explain to me again how filing a MTD prevents this?  To put a finer point on it, what about a MTD keeps a judge from ignoring it just like he would a MTC? In fact, between a MTD and MTC, the MTD is the only one a court can ignore in terms of ruling on arbitration. If a MTC is not ignored, we can appeal that.  Not so with an ignored MTD.

No more arguments from me. The statutes and caselaw have been cited and anyone with an objective point of view can see how things work in reality.  If you insist on making your own rules, at least have the decency to admit you're winging it. 

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53 minutes ago, CCRP626 said:

The template arb motion for sometime was Motion to Dismiss or in the Alternative Stay the Proceedings and Compel Arbitration. Seemed to work pretty much everywhere except didn't it start confusing Arizona judges so it got modified to a simpler choice but I don't remember what the foolproof one for Arizona judges was. I think @Harry Seaward mentioned this recently?

It's answer with MTC. There is no foolproof. The fools keep doing the only thing they know.  When those fools are judges, the only choice you have is to accept the ruling or to appeal their foolishness.  In other words, nothing we can do on the front end will prevent them from being fools. 

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2 minutes ago, Harry Seaward said:

Explain to me again how filing a MTD prevents this?  To put a finer point on it, what about a MTD keeps a judge from ignoring it just like he would a MTC? In fact, between a MTD and MTC, the MTD is the only one a court can ignore in terms of ruling on arbitration. If a MTC is not ignored, we can appeal that.  Not so with an ignored MTD.

The case can't move forward until the MTD is decided upon, as there was no Answer.   How's that for a fine point?   How again will they ignore a MTD?  Any examples of this?

9 minutes ago, Harry Seaward said:

No more arguments from me. The statutes and caselaw have been cited and anyone with an objective point of view can see how things work in reality.  If you insist on making your own rules, at least have the decency to admit you're winging it. 

Payne & Broemmer both used the MTD w/alternative stay & compel.   Both cases were dismissed.  Where am I wrong?  What rules have I made up?  

 

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16 minutes ago, Harry Seaward said:

It's answer with MTC. There is no foolproof. The fools keep doing the only thing they know.  When those fools are judges, the only choice you have is to accept the ruling or to appeal their foolishness.

The smart play is to be interlocutory appealing a denial of a MTC at the onset, before an answer is filed.   As opposed to be tied up in appealing a summary judgment or dealing with unwarranted pre-trial conferences, or settlement conferences.

@BV80 mentioned a decent case PC Onsite, LLC v. Massage EN V, LLC (although, not authoritative) regarding filing a simple MTC Arb in lieu of an answer.  That seemed to work in that instance.  

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37 minutes ago, Coffee_before_tea said:

Payne & Broemmer both used the MTD w/alternative stay & compel.   Both cases were dismissed.  Where am I wrong?  What rules have I made up?  

You've been shown where you're wrong.  You can read back a page or so if you're a masochist.

I just want to be clear here.  You're not arguing the propriety of a MTD, but instead your entire reasoning on a MTD is because it might be granted.  Is that right?

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If I'm wrong, explain how the same method in Payne and Broemmer are wrong.   You and BV are posting stuff that is not addressing my point specifically.

Yes, to be clear:

-  File a MTD in lieu of answer, because the Rules of Civil Procedure allow it (116a(2)(i) and 12B(1))
-  Include the Alternative Stay and compel contractual arbitration.

  1. If the judge agrees that there is a valid, and binding arbitration agreement that both parties have agreed to, then they may dismiss the case for lack of subject matter jurisdiction (Payne & Broemmer).   Case dismissed = win
  2. If the judge agrees that there is a valid, and binding arbitration agreement, yet refuses to dismiss the action, then the judge has an alternative to Stay the proceedings and compel the parties to arbitrate = Case stayed & Arbitration compelled = win
  3. If the judge denies both the MTD and MTC Arbitration, then you may do an interlocutory appeal before you file an Answer.   Likely, you'll win the appeal, and the MTC will be granted = Win.
  4. If the appeals court denies your MTC appeal, then the Defendant files an answer, and the case begins.

An Answer just adds more complexity to an already complex issue.

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Something I'm guessing you missed from Payne:

Quote

Therefore the disposition was in the nature of summary judgment.

So the court recognized a MTD was not proper under the circumstances and treated instead it as a MSJ.

 

And here is the problem with Broemmer:

Quote

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. Broemmer stipulated to the form of that judgment.

That last sentence changes the entire landscape of this ruling, which I'm sure is why you left it off your citation.

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@Harry Seaward I'm all for filing the MTC but does the answer need to be included? This seems to go beyond the Judge deciding if there is a valid agreement to arbitrate or not with all other questions to be decided in arbitration. Once that MTC is presented the case is stayed prior to the Judge ruling on it. If the Judge decides there isn't an agreement to arbitrate, that's appealable.

I'm guessing including an answer (making sure to include private arb as an affirmative defense) is another path of least resistance approach to get this into private arbitration but isn't needed.

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@CCRP626 If the lawsuit is not responded to, the plaintiff can move for default.  Our rules do not recognize a MTC as a valid response to a lawsuit.

In addition to a MTD arguing subject matter jurisdiction being improper, I guess I'm not seeing how an answer complicates anything.  It's a passive filing whereas a MTD elicits a response.  If the MTD is filed with a MTC, you're now asking the court to consider two options instead of one and the plaintiff will be making arguments against both.  Seems like an answer keeps thing the simplest.

Because our courts do whatever here, a standalone MTC (no answer, no MTD) could get you into arbitration. An answer with MTC could get you into arbitration.   A MTD with MTC could also get you into arbitration. Then again, it's possible depending on the judge that none of these things will work.  We have seen the answer and MTD strategies both fail.  We could sit around like a bunch of superstitious natives and try to attribute outcomes to things that have no bearing on said outcome, or we can face the reality that, if so inclined, the court is going to deny a MTC no matter how it's filed. If we just do things the right way we give ourselves the best record with which to appeal.

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41 minutes ago, Coffee_before_tea said:

I've cited my authority that it's proper, now explain why it's not.

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

That and just plain ol' common sense, but this requires an understanding of the function of a MTD.

What authority did you post that says a MTD must accompany a MTC?  Or even that a MTD is proper over an answer?

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@Harry Seaward @Coffee_before_tea @BV80 @CCRP626 I have read through this thread a few times trying to get each side take on the proper way to get to arbitration.  I really appreciate everyones input and reasoning.  Which has made it even more difficult to decide what to do when I respond.  As I have said before I've tried MTD/MTC.. that has been the least expensive route so far.. this is the one in the appeals process. The justice court did not order any bonds or fees, the superior court has just now sent their cost to file the appeal within 20 days and I will try to get a deferral or payment plan.  This forum has been the best ever since I have started getting these complaints and I'm so glad I found it.  Filing an answer seemed to make the court begin litigation proceedings and I wanted to stay away from all of that.. Discovery, Pre-trial, MSJ etc.. I'm not sure but I may go with the MTD OR in Alt Stay proceedings and Compel Arbitration... I know it may not work again but I think I will try again. It may come down to filing an Answer eventually but I hope if I can drag it out for awhile they will just give up..lol. hopeful thinking. 

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@stefeni074

You are just in the crossfire of some" spirited" legal debate.  Don't let it sidetrack you from your own case.  I am glad you found this forum helpful.  In law, in medicine, in just about everything in life,  bright and articulate people have strong opinions and you have to decide for yourself how best to proceed.  This forum by far is the best one anywhere, and we have had  AZ wins here lately.   But exactly what is the best template or strategy for more wins in a court system like AZ is difficult to determine.  As Harry said, you want  to proceed in such a way that will give you the best record with which to appeal.   There are better "gods" on the AZ Court of Appeals.

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@stefeni074  I'm not sure if you have the Webbank arb agreement, so I've attached it to this post.  It's from 2014, as I believe that was the last time you used the account.  It's directly from the CFPB site, where the OC's are required by law to provide the agreements to their consumers.

If you read the Arb agreement, it contains some good info, and may be worth quoting in your motions.  The same inferences & language are found in Payne v. Pennzoil Corp., 672 P. 2d 1322 - Ariz: Court of Appeals, 2nd Div. 1983

I would also recommend requesting oral arguments at your hearing.  Don't forget your affidaivit attesting to the validity of the agreement.

 

 

 

creditcardagreement_10085.pdf

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