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Need advice for Court Arbitration Meeting update 5/6/16


microcurrent
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Hey

Last appearance my as suggested MTC Arbitration by you great folks was approved by both sides and we have an appearance Friday.

Now I have not sent in the arbitration forms because I don't have the $1200 money to pay and the debt is under 4K

What is the best strategy to tell the court?

Thanks

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On 5/3/2016 at 2:48 PM, CCRP626 said:

Are you doing this through JAMS? The max you pay is $250. What does your card agreement say for fees in the arbitration section as far as Plaintiff paying?

Yes, JAMS.

The card agreement says whoever files first pays the initial filing fee, unless you get a fee waiver under the applicable rules of the arbitration firm.

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@microcurrent you're under JAMS consumer rules, so the most you pay is $250. If the $250 isn't affordable, contact JAMS to see what they can work out for you.

http://www.jamsadr.com/rules-consumer-minimum-standards/

With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

These standards are applicable where a company systematically places an arbitration clause in its agreements with individual consumers and there is minimal, if any, negotiation between the parties as to the procedures or other terms of the arbitration clause. A consumer is defined as an individual who seeks or acquires any goods or services, primarily for personal family or household purposes, including the credit transactions associated with such purchases, or personal banking transactions. These standards do not apply to the use of arbitration in resolving disputes arising from commercial transactions between a lender and commercial borrowers or a company and commercial customers, other financial services such as investment transactions, real estate transactions, or to matters involving underinsured motorists. Nor do they apply if the agreement to arbitrate was negotiated by the individual consumer and the company.

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On 5/5/2016 at 1:17 PM, fisthardcheese said:

It is probably going to look bad to the court that you never filed arbitration yet when you motioned and the court granted it.  Hopefully the judge won't punish you for not compiling with your own request and order to arbitrate.

You were right.

He ordered a summary judgement against me.  Without a trial and with no evidence.  I said you have no authority to do that with a shred of evidence, you have hearsay before you.   He said appeal.

But I have no money for an appeal and last time I asked for pro porius it was denied.

Help!

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You only have 10 days to get your Motion to Reconsider in if you want to try to salvage your go for arbitration. See Rules of Civil Procedure 59 and 60 to do that but you'll need to get this started with JAMS and pay them first or see if you can be billed. You need to show you're serious about initiating arbitration with a JAMS response to show the Judge.

2 hours ago, microcurrent said:

Without a trial and with no evidence.  I said you have no authority to do that with a shred of evidence, you have hearsay before you.   He said appeal.

Did you ever answer the complaint or was the sole response to the complaint a Motion to Compel Arbitration? Did the Plaintiff file in small claims?

 

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6 hours ago, CCRP626 said:

1.  You only have 10 days to get your Motion to Reconsider in if you want to try to salvage your go for arbitration. See Rules of Civil Procedure 59 and 60 to do that but you'll need to get this started with JAMS and pay them first or see if you can be billed. You need to show you're serious about initiating arbitration with a JAMS response to show the Judge.

2.  Did you ever answer the complaint or was the sole response to the complaint a Motion to Compel Arbitration? Did the Plaintiff file in small claims?

 

1.   Thanks for the prod.

2.   Yes I did answer the initial complaint and requested trial by jury forma pauperis.  Denied.  Then filed motion for arbitration and with it my signed form for JAMS.   Motion granted.   After I forgot to send in the form because someone told me it was $1200 fee.

We were at the Status hearing was when Judge nailed me and everyone else that day.  

 

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@microcurrent The Judgment wasn't due to the Plaintiff filing a motion, the Judge came up with it after seeing you hadn't moved forward with arb?

AFAIK, the filing fee isn't refundable with JAMS so you may want to do everything to get this moving forward with JAMS without sending funds until your reconsideration is approved. Sooner or later you will have to pay JAMS and then it will be the Plaintiff not doing their part paying their share and you can push this to settlement/dismissal with reimbursement from them for what you're out of pocket.

If that $250 isn't something you can afford in one lump, contact JAMS before doing anything else to see what payment arrangements could be worked out. Otherwise you'll be back in front of the Judge looking like you aren't serious about arb.

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On 5/11/2016 at 11:42 PM, fisthardcheese said:

I would consider it lucky that you only received a summary judgement and not also a fine or a contempt of court charge for not following the court order which you asked the court for in the first place. 

Thanks to the stars that day!

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I believe Hawaii will not start the 30 day clock on your appeal until after the reconsider is decided but verify that. So, based on that, just do the reconsideration making sure to bring your JAMS paperwork and proof it's been sent. Then you can always appeal.

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45 minutes ago, CCRP626 said:

I believe Hawaii will not start the 30 day clock on your appeal until after the reconsider is decided but verify that.  So, based on that, just do the reconsideration making sure to bring your JAMS paperwork and proof it's been sent. Then you can always appeal.

thanks,

Do I attach the JAMS application or a picture of a check for 240$ and application as an exhibit to the reconsideration? 

or set a  date for the hearing first, if I can get one, and bring copies of the paperwork to the hearing?

Does the Motion to Reconsider extend the appeal 10 day deadline automatically or does it need to be stated in the MTR?

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Check your Rules 59 and 60 for your MTR  but it has to be filed no later than 10 days after the judgment is filed by the clerk. After your motion to reconsider is ruled on, if not in your favor you'd have 30 days after that to appeal. Time to appeal affected by post- judgment motions. (Rule 4a3) Although if this is small claims court, the court rules say no appeal after you've done a motion to reconsider.

Keep an eye on the clock since the rules also state if the MTR isn't ruled on within 90 days after filing, it's considered denied. You can appeal that.

I wouldn't attach a personal check since it just makes it easier for the Plaintiff to find where you bank. Everything else (including a money order copy) attach to your MTR and bring another copy with you to the hearing. Make sure the Plaintiff gets a copy as well.

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  • 3 weeks later...

UPDATE.   I filed the MTR a got a trial daye for 6/13/2016 and received the Plaintiff's Opposition (see attached) wherein they cite AMFAC. Inc. v. Waikiki Beachcomber Inv Co., 74 Haw. 85, 114, (1992) and as the reason for opposing the MTR.

Looking through the citations I cannot grasp what the other side is factually supporting as their opposition.  

Either way do I need to respond, and what do I say before the hearing or improve on the original MTR?

Let me know how to proceed.  thanks

 

PS I also have the Received the JAMS Notice of Intent To Initiate Arbitration, so that is moving along.  

 


 

pdf of MOTOIN TO RECONSIDER.pdf

Plainitff_Opposition_to_MTR_OCR.pdf

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It sounds optional to do in writing but you can do a Defendant's Reply to Plaintiff's Opposition to Defendant's Motion to Reconsider making sure to get that in by the deadline (check your court rules).

I think just say what you've said here. JAMS doesn't refund fees so you wouldn't have sent them $250 if you weren't serious about entering arbitration. You previously thought incorrectly the amount needed was over $1,000 and JAMS Demand Form did not state a different amount.

I'd think of an answer in case the Judge asks if you thought arbitration cost $1,000 and you didn't have it when/how were you planning on initiating arbitration after your MTC was approved. Why didn't you ask for the arbitration firm to waive your fees?

Looking at the Plaintiff's case cited and other cases, one of the arguments against a MTR is it's overly used to present a defense that should have been used as an opposition to a Motion for Summary Judgment. There was no new matter in the MTR presented not already known when the previous hearings were held. In your case though, you could argue since you had no notice a summary judgment was going to be decided on, you were not able to present a defense until now.

("[A] motion for reconsideration is not time to relitigate old matters.")

A great deal of time and labor was given by the court to a hearing and consideration of the original motion....
... Although motions for rehearing ought not to be discountenanced, there has been a growing tendency here to treat them as an ordinary step in the course of a case; and this tendency, I think, should be discouraged. Too often we see motions to rehear of a purely repetitious nature. Again we find them predicated upon factual or legal ground that could or should have been presented at the original hearing. In both instances they necessarily result in delay and wasted effort by court and counsel.
These comments are not intended as any criticism of counsel in this case. They are made only in an effort to discourage a growing tendency to abuse the use of the motion to rehear. It is a motion which has its proper use in our practice, but should be sparingly employed, only where unusual circumstances prevail.

facts within the personal knowledge of the opposing party must be presented to the court in opposition to a motion for summary judgment, not on a motion for reconsideration.

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  • 1 month later...
On 5/10/2016 at 2:06 PM, microcurrent said:

But I have no money for an appeal and last time I asked for pro porius it was denied.

See if installment payments of fees is an option or request it if fee waiver is denied.

AFFIDAVIT IN SUPPORT OF MOTION FOR LEAVE TO PROCEED ON APPEAL IN FORMA PAUPERIS

http://www.courts.state.hi.us/docs/court_rules/rules/hrap.htm#Form 4

 

Effect of denial of motion for leave to proceed in forma pauperis. If the motion to proceed in forma pauperis is denied the movant shall, within 10 days after the denial of such a motion, pay all unpaid filing fees and shall give security for costs. Failure of the unsuccessful movant to pay the unpaid filing fees or to give security for costs shall not affect the validity of the appeal, but is ground for such action as the appellate court having jurisdiction over the appeal deems appropriate, and may include dismissal of the appeal.

Rule 2.       SUSPENSION OF RULES.:   In the interest of expediting a decision, or for other good cause shown, either Hawai‘i appellate court may suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.

http://www.courts.state.hi.us/docs/court_rules/rules/hrap.htm

http://www.courts.state.hi.us/legal_references/resources/appellate_practice_tips

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Read the law regarding arbitration.

Quote

 

[§658A-7] Motion to compel or stay arbitration. (a) On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:

(1) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

(2) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

(b) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(c) If the court finds that there is no enforceable agreement, it shall not, pursuant to subsection (a) or (b), order the parties to arbitrate.

(d) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

(e) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section shall be made in that court. Otherwise a motion under this section shall be made in any court as provided in section 658A-27.

(f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

(g) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim. [L 2001, c 265, pt of §1]

 

It's frustrating seeing these judges continue with jurisdiction of claims, after they have ordered Arbitration.  These status hearings need to be objected to.  The stays are meant to be in place until the completion of arbitration.  If a party fails to arbitrate under the court order, then the court may sanction the offending party, but in my opinion, reclaiming jurisdiction and granting a MSJ is abuse of discretion.

That being said, you told you the JAMS fees were $1,200?  This is false, deceptive and misleading, and material because you acted on this information.

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