WinInAZ

Being Sued by Midland Funding in Arizona

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21 hours ago, Xerxes said:

I think that I can agree with most of that.

Just to be sure that I understand, your interpretation of the language is such that the first instance of Small Claims Court  (the instance surrounded by quotes) is some sort of abbreviation, title, shorthand, or marker such that the second instance of Small Claims Court (the instance at the end, not surrounded by quotes) can be used as a non-literal but equivalent substitution for the language the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction.

In other words, it is used in the same way that X is used in this substitution instance:

Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction (each a “X”), provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action. Further, you and we agree not to seek to enforce this arbitration provision, or otherwise commence arbitration based on the same claims in any action brought before the X.

Precisely.  At least that's how I think it will get argued by a plaintiff being forced into arbitration on a debt they sued on, and I'm fairly certain a ruling in this fashion would be upheld by an appeals court.

On the other hand, the use of the specific phrase "small claims court" is curious, and I think an argument could be made that it is intentionally misleading at worst and ambiguous at best.  Since Delaware doesn't have a "small claims court" why not use the phrase "Justice Court" instead?

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16 hours ago, Harry Seaward said:

Precisely.  At least that's how I think it will get argued by a plaintiff being forced into arbitration on a debt they sued on, and I'm fairly certain a ruling in this fashion would be upheld by an appeals court.

On the other hand, the use of the specific phrase "small claims court" is curious, and I think an argument could be made that it is intentionally misleading at worst and ambiguous at best.  Since Delaware doesn't have a "small claims court" why not use the phrase "Justice Court" instead?

Th is is a 2016 ruling by the Del Superior Court, which refers to their Justice of the Peace Court as a "small claims court."

https://scholar.google.com/scholar_case?case=14950411998502897982&q="small+claims+court"&hl=en&as_sdt=4,8,139

 

In an email dated April 18, 2014, Joseph Vincent informed counsel for Stone Creek that the Vincents would be seeking compensation in small claims court. This email was addressed to counsel for Stone Creek and carbon copied to Braaten.[1] In an email dated April 29, 2014, and addressed to both counsel for Stone Creek and Braaten, Danielle Vincent stated that she was in the process of gathering documentation to file a complaint in the Justice of the Peace Court and asked counsel to confirm that he still represented Stone Creek.

 

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2 hours ago, debtzapper said:

Th is is a 2016 ruling by the Del Superior Court, which refers to their Justice of the Peace Court as a "small claims court."

https://scholar.google.com/scholar_case?case=14950411998502897982&q="small+claims+court"&hl=en&as_sdt=4,8,139

 

In an email dated April 18, 2014, Joseph Vincent informed counsel for Stone Creek that the Vincents would be seeking compensation in small claims court. This email was addressed to counsel for Stone Creek and carbon copied to Braaten.[1] In an email dated April 29, 2014, and addressed to both counsel for Stone Creek and Braaten, Danielle Vincent stated that she was in the process of gathering documentation to file a complaint in the Justice of the Peace Court and asked counsel to confirm that he still represented Stone Creek.

 

I did a search through this document for "Justice of the Peace" There are 27 instances. Small claims court is only found once. It is the language that was used in an email by the defendants.  So couldn't it be argued that they just used the wrong term for the court?

In an email dated April 18, 2014, Joseph Vincent informed counsel for Stone Creek that the Vincents would be seeking compensation in small claims court.

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I mentioned a while back, in the beginning stage, that the on-line filing is not accepted or recognized for most of the courts listed on our court website. Even though it allows you to walk through the process, they hadn't made filing available to other counties yet. There is wording that hints to that fact once you get to the EZ Turbo  filing pages.  If you indeed submitted online paperwork, it could be the reason for there being no record. with the court.  perhaps. 

 

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5 minutes ago, GRRRR101 said:

I mentioned a while back that the on-line filing is not accepted or recognized for most of the courts listed on the ourt website. every though it allows you to walk through the process, there is tricky wording that hints to that fact. So of you submitted online paperwork, it's likely to  be reason for missing documents. 

 

No, I took it to the court. I submitted my answer and the MTC at the same time. Sent Bursey a copy of everything, and kept a copy for myself.  He received his copy, and I have mine, just the court is missing theirs.

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11 hours ago, WinInAZ said:
 

No, I took it to the court. I submitted my answer and the MTC at the same time. Sent Bursey a copy of everything, and kept a copy for myself.  He received his copy, and I have mine, just the court is missing theirs.

@GRRRR101 Unfortunately this is par for the course in our Justice Courts here.  The clerks are so used to lawyers or law clerks doing their jobs for them that many of them don't know what to do when a pro se brings a motion that doesn't conform to the 'complaint -> answer' or 'complaint -> default' formula they see 99% of the time.

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8 hours ago, WinInAZ said:

I did a search through this document for "Justice of the Peace" There are 27 instances. Small claims court is only found once. It is the language that was used in an email by the defendants.  So couldn't it be argued that they just used the wrong term for the court?

In an email dated April 18, 2014, Joseph Vincent informed counsel for Stone Creek that the Vincents would be seeking compensation in small claims court.

@debtzapper I agree with @WinInAZ  that this ruling is simply re-stating what the person said in an email and that this is not the court calling it a "small claims" court.

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On January 8, 2017 at 8:21 PM, WinInAZ said:

No, I took it to the court. I submitted my answer and the MTC at the same time. Sent Bursey a copy of everything, and kept a copy for myself.  He received his copy, and I have mine, just the court is missing theirs.

Its sad that errors like this can happen in court. I hope they get it straightened out.

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I think the issue is that AZ courts have become so automated that they have a shortage of clerks that have ever dealt with paper motions. Last time I went to court with my lawyer we stood at the window forever, and when someone came to assist they had no clue what was going on.

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26 minutes ago, Goody_Ouchless said:

I think the issue is that AZ courts have become so automated that they have a shortage of clerks that have ever dealt with paper motions. Last time I went to court with my lawyer we stood at the window forever, and when someone came to assist they had no clue what was going on.

I actually finally got to the court yesterday. I went to file a new MTC.  I explained to the clerk what happened. She just went through the motions like she could care less. She was scrolling through my docs on the screen, and I saw what I thought was my original motion. I asked her if I could see it, and sure enough it was right there. 

It was actually partially my fault because I did not use the correct formatting, so it didn't jump out at them. She agreed it was there, but I had already filed the new one, so I told her to go ahead and file it. 

I will get together copies of everything and send to Bursey in the morning.

So, is it recomennded that I now email Bursey, with a settlement offer, or should I wait on a decision on the MTC? If I could make this go away sooner, than later for under $400, I would prefer to do that.

I was alittle concerned about the formatting, but then I thought about the mistake Bursey made in the original complaint (referring to Dreamy Draw Justice court as "Maricopa – Dreamy Draw County") and that was basically laughed at, so my mistake should be dismissed too.

I'm eager to hear any and all advice @Xerxes@Harry Seaward @fisthardcheese @debtzapper @GRRRR101@Goody_Ouchless

 

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I see no reason not to email him if you are set on settling.   Since the total amount sued for is just over $600, I would think a $400 settlement should be do-able.  But then again, I have seen JDB be very aggressive over measly amounts of money.

I would email him and start off by saying that due to a clerk error you noticed that your original MTC was not actually filed with the court and that you have corrected that and it is now filed.  Tell him you have mailed another copy, even though you previously sent one since you had to re-file the same motion.  I would say that I am confident that the court will grant my MTC and that his previous argument about small claims court will not apply since he did not file this case in the small claims division.  After tipping your hand to him like this, I would then tell him that in the interest of time and further expense, I would be wiling to settle this matter for $200.

I would expect him to counter offer for potentially the full amount.  If he does, you may have to go back and forth a few times and see if he comes down enough for you to settle.

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On 1/12/2017 at 8:03 PM, fisthardcheese said:

I see no reason not to email him if you are set on settling.   Since the total amount sued for is just over $600, I would think a $400 settlement should be do-able.  But then again, I have seen JDB be very aggressive over measly amounts of money.

I would email him and start off by saying that due to a clerk error you noticed that your original MTC was not actually filed with the court and that you have corrected that and it is now filed.  Tell him you have mailed another copy, even though you previously sent one since you had to re-file the same motion.  I would say that I am confident that the court will grant my MTC and that his previous argument about small claims court will not apply since he did not file this case in the small claims division.  After tipping your hand to him like this, I would then tell him that in the interest of time and further expense, I would be wiling to settle this matter for $200.

I would expect him to counter offer for potentially the full amount.  If he does, you may have to go back and forth a few times and see if he comes down enough for you to settle.

Update on my case.  Below is a screenshot of my Case Calendar. I'm not sure what an order of "undesignated" on my MTC means. 

I received an order to file a disclosure statement, and mediation has been scheduled for Feb 1. 

Does this mean my MTC is being ignored?

 I was planning on sending Bursey the following email: Can I get your opinion?

Dear Mr Bursey,

Due to clerk error I noticed that my original MTC was not actually filed with the court. I have corrected that, and it is now filed. I have sent you a copy of the renewed MTC, even though I previously sent you a copy of the original MTC. 

I am confident that the court will grant my MTC and your previous argument about small claims court will not apply since this case was not filed in the small claims division. 

In the interest of time and further expense, I would be wiling to settle this matter for $200.

Screen Shot 2017-01-24 at 9.07.43 PM.png

 

 

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"Undesignated" just means the clerk didn't select a sub-type for the filing.  For example, for the MSJ, you can see they set "Motion" for the event and "Summary Judgment" for the sub-type.  So Plaintiff filed some miscellaneous motion on the 17th.  If you have not received a copy of that by now, I would go down TODAY and get a copy from the court because your deadline to respond is the 31st.  (Technically you have an extra 5 days because they sent your copy via postal mail, but I wouldn't count on that.)

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Yes, they sent me a packet with a huge list of items that I am expected to explain. I don't even know where to start. 

So does this mean my MTC is just being ignored? I asked for a stay on the proceedings, but they have just moved forward, and mediation is set for Feb 1.

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The motion to compel was filed on the 10th (officially). Bursey has 10 days to respond and you have 5 days to reply to his response. Add 5 days on to each for mailing and also figure weekends and legal holidays are excluded from the count and that means the motion technically won't be ripe for ruling until well after your PTC. I would ask the court to rule on it at the PTC.

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3 hours ago, Harry Seaward said:

The motion to compel was filed on the 10th (officially). Bursey has 10 days to respond and you have 5 days to reply to his response. Add 5 days on to each for mailing and also figure weekends and legal holidays are excluded from the count and that means the motion technically won't be ripe for ruling until well after your PTC. I would ask the court to rule on it at the PTC.

I'll have to go to the court tomorrow and see if I'm missing something.  All I see that I received from Bursey, dated Jan 19 is a Notice of Service of Disclosure Statement and his disclosure statement, but that is not a response to my MTC, is it? 

I received from the court a disclosure statement form that  I must fill out, so I'm not seeing anything that I am supposed to respond to.

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9 hours ago, WinInAZ said:

All I see that I received from Bursey, dated Jan 19 is a Notice of Service of Disclosure Statement and his disclosure statement, but that is not a response to my MTC, is it?

No, the disclosure statement is required by the rules to be served within 40 days after you file your answer.  You're supposed to serve one also, but unless you have something that proves you paid the debt or that the debt is not yours, you really don't have anything to disclose.  Especially since you're trying to get the case into arbitration.

 

9 hours ago, WinInAZ said:

I received from the court a disclosure statement form that  I must fill out, so I'm not seeing anything that I am supposed to respond to.

 I would respond to each item in the court form with "none at this time, but I will supplement this disclosure statement as new information is discovered."

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@Harry Seaward  Correct me if I'm wrong, but the docket that OP posted shows the Plaintiff filed some kind of motion listed as "undesignated" and then on the same date there is an order on that motion and a notice of pending dismissal.  It looks to me like they may have filed a dismissal after OP filed the MTC?

Actually looking at this docket makes it appear that the judge granted summary judgement the same day they filed the motion.  It's very confusing.

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@fisthardcheese in AZ, you're supposed to file a proposed form of order with any motion. I'm fairly certain the "order" shown in the docket is just reflecting the order has been lodged, but is outstanding as of yet. 

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19 minutes ago, fisthardcheese said:

@Harry Seaward  Correct me if I'm wrong, but the docket that OP posted shows the Plaintiff filed some kind of motion listed as "undesignated" and then on the same date there is an order on that motion and a notice of pending dismissal.  It looks to me like they may have filed a dismissal after OP filed the MTC?

Actually looking at this docket makes it appear that the judge granted summary judgement the same day they filed the motion.  It's very confusing.

The pending dismissal has been there since day one.

I don't know what PTC is. Is that the mediation?

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2 hours ago, WinInAZ said:

The pending dismissal has been there since day one.

Yeah, they revamped the online docket listing a few months ago to  include more info and as a result some things don't make a lot of sense now.  I've determined the "//" just means it's outstanding.

2 hours ago, WinInAZ said:

I don't know what PTC is. Is that the mediation?

PTC stands for Pre-Trial Conference.  Basically where the judge tries to pressure the parties into settling and if that doesn't work, sets a trial date and various milestones.  It's a good opportunity to have him rule on any outstanding motions.

I'm really curious what the 1/17 motion is.  They already filed for summary judgment and a motion for telephonic appearance.  Not sure what else is left, other than a motion to strike your MTC.

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2 minutes ago, Harry Seaward said:

Yeah, they revamped the online docket listing a few months ago to  include more info and as a result some things don't make a lot of sense now.  I've determined the "//" just means it's outstanding.

PTC stands for Pre-Trial Conference.  Basically where the judge tries to pressure the parties into settling and if that doesn't work, sets a trial date and various milestones.  It's a good opportunity to have him rule on any outstanding motions.

I'm really curious what the 1/17 motion is.  They already filed for summary judgment and a motion for telephonic appearance.  Not sure what else is left, other than a motion to strike your MTC.

I'll stop there after work tomorrow and find out what it means. Stay tuned

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The 1/17 motion was just informing us that Midland would not be present at the mediation and Bursey has full authority to make a decision.

 

Now, I'm pretty nervous about the mediation. My guess is I will be asked if I owe this debt, and if I ignored multiple attempts to collect on it. How am I supposed to answer this?

I would really like for this mediation to be the end of this whole thing. Would I even have a chance of a settlement without a judgement entered?

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10 hours ago, WinInAZ said:

The 1/17 motion was just informing us that Midland would not be present at the mediation and Bursey has full authority to make a decision.

 

Now, I'm pretty nervous about the mediation. My guess is I will be asked if I owe this debt, and if I ignored multiple attempts to collect on it. How am I supposed to answer this?

I would really like for this mediation to be the end of this whole thing. Would I even have a chance of a settlement without a judgement entered?

Did he not respond to your settlement offer by email?

It sounds like it is highly unlikely that any judgement will be issued at the PTC no matter what, so don't be nervous.  This is called a PRE trial conference.  This means you still have the right to a trial, even if no settlement or issues are resolved at this PTC date.  If this were me, I would go into the conference ready to argue my MTC.  If they haven't responded to your email, they may talk to you about settlement prior, but if settlement isn't reached, ask for the court to rule on your MTC.  No matter what happens with the MTC, you can leave court that day and still attempt to settle with Bursey before the actual trial.

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