stefeni074

Jefferson Capital Metabank Fingerhut Arbitration Arizona

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I could use some advice.. @Harry Seaward @Coffee_before_tea @debtzapper and any others that have read this thread.  I went to the Justice Court to drop off my Motion to Dismiss / Alt to Stay and Compel.  The clerks got the file out and were discussing something in the file and I had heard one say "Just let her turn it in".  The clerk stamps in my motion and I ask her is there something else?  I said I heard you talking is there a question about something.. So the clerk just smiles real big and says "No".  I look at her for a few seconds and I know I frowned at her and she just kept smiling.  So I left and went to mail the copies to the attorney.  On Saturday I recieved a Motion to Dismiss from the court that was prepared by the court for Lack of Service.  I had never signed for the complaint, but it was left at my door April 21st with out the Complaint attached only the Motion for Alternative Service stating they could leave it at my residence.   So, I have handed in my Motion after this Order for Dismissal.. does that mean that it gives them time to now reply to my Motion or not.  The order does not state with or without prejudice.  The Order was signed May 9th, and I handed my Motion in on May 10th.  Is there a grievance I can do for the clerks not telling me that a Dismissal was signed?

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Call the clerk and ask if there is a certificate of service on file for your case. It sounds like even though you were served in accordance to the alternative service order, they never came back to let the court know you were served. 

Deal with one thing at a time. If Jefferson tries to reopen the case make an argument that they didn't follow the rules (113 (a )) regarding filing a certificate/affidavit of service. Be prepared for the possibility that the court may let them file a certificate and move ahead with the case. 

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I called and they do not have a ceritificate of service on file.  The judge does have my motion on his desk waiting for his review.  It is possible for them to refile since she said it was without prejudice.  And I pretty much self identified service.  If they do re-file I will argue the 113(a).   

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Quote

...
If served by a person other than the sheriff or a deputy sheriff, return and proof of service shall be made promptly by affidavit thereof.
...
Failure to make proof of service does not affect the validity thereof.

Rule 4(g), ARCP
https://govt.westlaw.com/azrules/Document/NA52AC6C0717411DAA16E8D4AC7636430

Quote

The filing of a pleading responsive to a pleading allowed under Rule 7(a) of these Rules shall constitute an appearance.

Rule 4(f), ARCP
https://govt.westlaw.com/azrules/Document/NA426EB50717411DAA16E8D4AC7636430

If you had not been served and they got a default, you could point to the lack of a Rule 113(a )/4(g) certificate of service as evidence that you had not been served.  Since you aren't arguing that you had not been served, the lack of a certificate is moot.

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I have recieved an Opposition to my MTD.  It did not state anything about my MTC argument.  It only stated that I have not paid the arbitration cost so I have failed to comply with the agreement.  I have included this file.  Any pointers on how to respond to their opposition?   @Harry Seaward @Coffee_before_tea @debtzapper and any others who read this thread.

WebBank_Redacted 5-17-16.pdf

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@stefeni074 you just need a stay as the arbitration statutes provide, not a dismiss, so I wouldn't worry about that. The cardmember agreement though. Does it say you're to pay the fee, anything about them paying your part if you request? If it's out of your pocket, can you send the $200 or whatever AAA needs? Then the eyes will be on the Plaintiff for not paying and they'd be in violation of the MTC Arb.

Easy response is you're waiting on the Judge to rule on the MTC then if approved you'll send your funds. Case is stayed, should be a status hearing down the road to make sure arb gets moving along. You've done your part. The Plaintiff has not and this is after they raise a stink about you not paying.

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Unless your rules require a written response I'd just state your points orally on the hearing date.

-You're waiting on the Judge to rule on the Motion to Compel Arbitration before you pay any non-refundable fees to AAA.

AAA may not refund but the Plaintiff will be reimbursing you if they don't arb. You can see a problem if you pay the fee, the Judge okays arb, dismisses the case and the Plaintiff walks away? Your money is gone. You won't have a judge to enforce the arb agreement unless you pay to start a new court case. With the case stayed you'll be able to go back to the Judge to enforce the arb agreement. The Plaintiff will see that and then you'll be able to set settlement terms to get rid of this- dismissal w/prejudice, no 1099c, no debt sale, credit reporting removed, fees reimbursed, etc.

 

 

 

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Ok, I don't think I have read any rules that I need to reply to their response?  They are not denying that an arbitration exists, only that I have not paid the filing fee yet.  So, I should wait until the judge rules on my motion to stay and compel if they are opposing the dismissal.  I just want to be sure so that I don't miss a time limit on responding.  Thank you @CCRP626

 

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@stefeni074 hopefully @Harry Seaward can double check my math. I see rule 7.1 for motion practice which seems to indicate it's optional for you to have to respond to them in writing. Your oral argument should go pretty quick, I'd think.

Each opposing party shall within ten days thereafter serve and file any answering memorandum. Within five days thereafter the moving party may serve and file a memorandum in reply, which shall be directed only to matters raised in the answering memorandum.

(d) Oral Argument. Oral argument shall be limited, in accordance with local rules, to a prescribed number of minutes, which shall not be exceeded without special permission in advance.

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This is why I don't like MTD in these cases. Too many open doors. 

You can make your arguments at the hearing but the judge can still rule on the motion before the hearing and then vacate the hearing as moot. 

I would oppose in writing. You can say something like "I will agree to pay the filing fee provided this court orders Plaintiff to reimburse me this non-refundable fee when they choose to dismiss the case instead of go to arbitration."

Include a form of order to that effect as well. 

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@stefeni074 

Seems straight forward to me.  The rules allow you to file a Reply to their opposition, and I would do so asap.  

File with AAA today, and pay the $200 (they may refund this to you at a later date).  Printout the AAA filing, with the receipt, and add it as an exhibit to your reply (this should have been done when you filed your MTD/MTC).

Then in your reply, you can say something like:

Quote

 

Plaintiff agrees that an Arbitration agreement exists, and contends the only reason the case should not be dismissed is because the Arbitration fee are not paid.  This is incorrect, the defendant has filed and paid to initiate arbitration with AAA, see attached exhibit.  

Thus, there is an exclusive, alternative forum to resolve this dispute, to which the Defendant has properly initiated, and the court should dismiss this action (see payne v. pennzoil).  Or, in the alternative this court should compel the plaintiff to arbitrate within the next 30 days, and stay this action until the completion of arbitration and such time when the court can confirm the arbitrators award.

 

You are still in a relatively good position.  Drive the point home!

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What about the fact that the court dismissed the case already for lack of service?

@Harry Seaward Can the AZ court consider the Defendant to have now voluntarily accepted service due to the continued action after non-service by plaintiff , or should OP send some type of notice to the court that they were served the court's dismissal in the case after filing the MTC and that the defendant accepts the dismissal and withdraws their MTC?  Would that be proper?

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1 hour ago, fisthardcheese said:

What about the fact that the court dismissed the case already for lack of service?

@Harry Seaward Can the AZ court consider the Defendant to have now voluntarily accepted service due to the continued action after non-service by plaintiff , or should OP send some type of notice to the court that they were served the court's dismissal in the case after filing the MTC and that the defendant accepts the dismissal and withdraws their MTC?  Would that be proper?

Federal Home Loan Mortgage Corporation v. Tietjen, AZ Court of Appeals, 2011

"FHLM is correct that a defendant may waive an insufficiency of process defense by seeking affirmative relief from the court, such as by filing a voluntary counter-claim or cross-claim."

I don't know if a MTD and MTC arbitration is considered affirmative relief, so here's another cite:


Kline v. Kline, 221 Ariz. 564, ¶ 18, 212 P.3d 902, 907 (App. 2009) ("A party has made a general appearance when he has taken any action, other than objecting to personal jurisdiction, that recognizes the case is pending in court.")

Considering the OP received an order of dismissal, perhaps she needs to call the court to see if the case is still pending and/or where her MTC stands.

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@stefeni074 I missed the part where you received an order dismissing the case for lack of service, that was signed and entered the day before you filed your MTD.

I would hope that your court acts like others, and once the order for dismissal is signed & entered, then other dispositive motions would be moot.  The plaintiff would have to refile & serve you to continue the lawsuit.

@fisthardcheese & @BV80  That may be the case, but the order was entered the day before she filed her MTD.  At that point, the case is disposed of, and the OP's motion should be moot.  

Shame on the clerks for not giving you this information.  They were obviously looking at the docket and saw that an order for dismissal was already entered, yet they let her file her motion anyway, without notifying her.

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Just now, Coffee_before_tea said:

That may be the case, but the order was entered the day before she filed her MTD.  At that point, the case is disposed of, and the OP's motion should be moot.  

That's why I said the OP needs to call the court to see if the case is still pending or not.

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1 hour ago, fisthardcheese said:

What about the fact that the court dismissed the case already for lack of service?

@Harry Seaward Can the AZ court consider the Defendant to have now voluntarily accepted service due to the continued action after non-service by plaintiff , or should OP send some type of notice to the court that they were served the court's dismissal in the case after filing the MTC and that the defendant accepts the dismissal and withdraws their MTC?  Would that be proper?

In addition to the cases @BV80 cited, I covered the rules in this post:
http://www.creditinfocenter.com/community/topic/327638-jefferson-capital-metabank-fingerhut-arbitration-arizona/?do=findComment&comment=1343311
 

Between those two references, I would say that a MTC would qualify as a responsive pleading.

However, I think @Coffee_before_tea has it right in this case where the order was issued prior to any appearance by OP so her MTC is moot.

The caveat here is Jefferson can still move to have the dismissal vacated by claiming OP was served and "failure to make proof of service does not affect the validity thereof."

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On 5/24/2016 at 10:28 AM, Coffee_before_tea said:

 

@stefeni074 I missed the part where you received an order dismissing the case for lack of service, that was signed and entered the day before you filed your MTD.

I would hope that your court acts like others, and once the order for dismissal is signed & entered, then other dispositive motions would be moot.  The plaintiff would have to refile & serve you to continue the lawsuit.

 

I called the clerk again today, she said the case was closed.  That is what is listed online in the court records.  I had called last week after I found out I submitted my motion after the judge had signed a dismissal.  The clerk at that time said the judge had my motion on his desk and would review it.  The clerks are not very helpful.  

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On 5/25/2016 at 6:27 PM, stefeni074 said:

 The clerks are not very helpful

After all, they are only paid by YOU and ME, the tax payers and are working as public SERVANTS.  Why should they, you know, work to SERVE the PUBLIC?  How dare you for encroaching on their day of facebooking!

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