GRRRR101

JDB Strikes Again...in A...Z...

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This is the part that had me confused  as far as private ARB vs. a judicial trial , etc. according to this the judicial arbitration sounds like it is enforced.   Does this mean that you automatically  are assigned to a compulsory arbitration/judicial and you wouldn't have a judge in hear a civil case in justice court anyway, if under$50 k.  U thought I saw this another time but it always seems to be listed under the Superior jurisdiction for civil court.  ?? 

 

Compulsory Arbitration
  • Time Period: After Defendant files an Answer
  • Definition: By Arizona Statute and Court Rule, civil cases, where the amount in controversy is less than $50,000, must be heard in an arbitration proceeding. In arbitration an attorney is appointed by the Court to hear the case and make a decision. Arbitration hearings are much simpler than a trial and can be heard much quicker. If either party is dissatisfied with the arbitration award they can file an Appeal from Arbitration and Motion to Set Trial, followed by a Trial Setting Notice, and can have a new trial by the Court. See, ARCP Rule 72-77

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On 10/7/2016 at 11:50 PM, GRRRR101 said:

This is the part that had me confused  as far as private ARB vs. a judicial trial , etc. according to this the judicial arbitration sounds like it is enforced.   Does this mean that you automatically  are assigned to a compulsory arbitration/judicial and you wouldn't have a judge in hear a civil case in justice court anyway, if under$50 k.  U thought I saw this another time but it always seems to be listed under the Superior jurisdiction for civil court.  ?? 

 

Compulsory Arbitration
  • Time Period: After Defendant files an Answer
  • Definition: By Arizona Statute and Court Rule, civil cases, where the amount in controversy is less than $50,000, must be heard in an arbitration proceeding. In arbitration an attorney is appointed by the Court to hear the case and make a decision. Arbitration hearings are much simpler than a trial and can be heard much quicker. If either party is dissatisfied with the arbitration award they can file an Appeal from Arbitration and Motion to Set Trial, followed by a Trial Setting Notice, and can have a new trial by the Court. See, ARCP Rule 72-77

Court arbitration has nothing to do with private arbitration as stated by your card agreement.  You must read your card agreement.  The Card agreement states you have the right to private arbitration with either AAA or JAMS (depending on the year of your Credit One agreement).  You must file a motion that asks the court to stay the court case and order the parties to participate in private arbitration per the contract (card agreement).  This is called a Motion to Compel Private Arbitration (MTC).  The example of a MTC has been posted on this site a million times.

Court arbitraiton is still court.  It gains you no leverage at all.  Private arbitration as outlined by the card agreement gives you a ton of leverage because it will cost the JDB a whole lot of extra costs and takes away their rubber stamp of the court system.

As @Harry Seaward said, Arbitration in AZ is extremely effective, and from what I have read here on AZ cases, it's really the only way to get a win against a JDB.

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3 hours ago, fisthardcheese said:

Court arbitration has nothing to do with private arbitration as stated by your card agreement.  You must read your card agreement.  The Card agreement states you have the right to private arbitration with either AAA or JAMS (depending on the year of your Credit One agreement).  You must file a motion that asks the court to stay the court case and order the parties to participate in private arbitration per the contract (card agreement).  This is called a Motion to Compel Private Arbitration (MTC).  The example of a MTC has been posted on this site a million times.

Court arbitraiton is still court.  It gains you no leverage at all.  Private arbitration as outlined by the card agreement gives you a ton of leverage because it will cost the JDB a whole lot of extra costs and takes away their rubber stamp of the court system.

As @Harry Seaward said, Arbitration in AZ is extremely effective, and fr

om what I have read here on AZ cases, it's really the only way to get a win against a JDB.

Yes I have read the agreement reg Arb already and kind of understood that the two options were private arb or litigation. So my question was for clarity as to how is litigation an option since the court auto ssigns those cases to court arb.  I learned later that the auto court arb applies only to cases in Supreme court and don't apply to me anyhow.  However, it did state after the court arb comes into play post- filing of an Answer. Am I to assume the same applies if I elect private arb? Meaning I can elect this after I file an answer. Basically my clock is ticking, if i want to file an immediate answer for now to buy time to contact AAA OR JAM.  Can i then come back a week later decide i want to file the MTD And Elect ARB is that an option or  do I have to elect it now?  I thought someone stated they filed an answer and filed the motion to arbitrate  later.  Basically, im still trying to figure out how to answer as to not contradict myself since a motion to arbitrate pretty much sounds like you are admitting to contract from the start.   I hope this makes sense, i may be over-thinking But I don't believe there is such a thing  as overthinking when it comes to law, especially in AZ. 

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On October 5, 2016 at 9:51 PM, Harry Seaward said:

If you don't assert arbitration from the get-go they can argue that you waived your right to it.

I know it's nerve wracking having to decide,  but I've seen nearly every AZ JDB case that went to trial end with a judgment against the consumer, and NOT ONE arbitration case end up with a judgment.  One guy reportedly owed $30,000 and the JDB walked away. 

I apologize in advance  if I have asked the same questions. I am getting kind of lost in this. I think some of my questions might already have been answered here on elsewhere.  Im juggling alot at home right now this process can be confusing. I think i maybe need to write some of the steps down on paper to keep a clear path . My current position is definitely Arb so now its time for me to just do it and i may be procrastinating a bit. Hopefully my fiance gets home in time for me to  go to court to file my paperwork.  It seems maricopa county has no electronic filing for Justice court, but they dont make that very clear on their website. 

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On October 4, 2016 at 6:51 PM, Harry Seaward said:

When was the last time you made a payment on the account? 

Do you have a copy of the agreement from around the time of the last payment? 

@Harry Seaward         @BV80    @fisthardcheese

I appologize in advance for being a bug and if you already answered this i cant find it. Do i have to print out the agreement and attach to the response.or just include a caption? Also, mY first step is motion to dismiss, or motion to compell arb?   I saw where WininAz was told to she would have 35 additional days to file an answer. But i think my instructions required me to file answer with reference to arbitration so it is not considered a waiver of arbitration. So thats where my confusion begins. Please advise.

Also, I THANK YOU and  all the fellow members for every bit of advice and  help you have provided me.   You are truly helping to make  peoples lives alot easier to deal with alot more than you probably realize. I truly appreciate it,

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56 minutes ago, GRRRR101 said:

@Harry Seaward         @BV80    @firsthardcheese  

I appologize in advance for being a bug and if you already answered this i cant find it. Do i have to print out the agreement and attach to the response.or just include a caption? Also, mY first step is motion to dismiss, or motion to compell arb?   I saw where WininAz was told to she would have 35 additional days to file an answer. But i think my instructions required me to file answer with reference to arbitration so it is not considered a waiver of arbitration. So thats where my confusion begins. Please advise.

Also, I THANK YOU and  all the fellow members for every bit of advice and  help you have provided me.   You are truly helping to make  peoples lives alot easier to deal with alot more than you probably realize. I truly appreciate it,

I would print out the agreement.   You want to show that the provision is within the agreement.

Check out Harry's response in the following thread.

 

 

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8 hours ago, GRRRR101 said:

Yes I have read the agreement reg Arb already and kind of understood that the two options were private arb or litigation. So my question was for clarity as to how is litigation an option since the court auto ssigns those cases to court arb.  I learned later that the auto court arb applies only to cases in Supreme court and don't apply to me anyhow.  However, it did state after the court arb comes into play post- filing of an Answer. Am I to assume the same applies if I elect private arb? Meaning I can elect this after I file an answer. Basically my clock is ticking, if i want to file an immediate answer for now to buy time to contact AAA OR JAM.  Can i then come back a week later decide i want to file the MTD And Elect ARB is that an option or  do I have to elect it now?  I thought someone stated they filed an answer and filed the motion to arbitrate  later.  Basically, im still trying to figure out how to answer as to not contradict myself since a motion to arbitrate pretty much sounds like you are admitting to contract from the start.   I hope this makes sense, i may be over-thinking But I don't believe there is such a thing  as overthinking when it comes to law, especially in AZ. 

But my summons and complaint says I must file a detailed answer in20 days  on the website it states to just do a short  answer. So do i need to file the answer with a MTC.? Must it be reply to each allegation or brief? Also, since JAMS is in the contract, do I just put them as my elected choic for arbitration or AAA. I dont why i need  to put AAA if they will reject it anyway.  

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You have to file *something* within 20 days of when you were served.  The rules provide for an answer, motion to dismiss or motion for more definitive statement.  (There's also a motion to strike, but doesn't apply here.)  Unless you really don't understand what Midland is claiming in their lawsuit, a motion for more definitive statement is out, leaving answer or motion to dismiss.  If you file a MTD or motion for more definitive statement, the court has to wait 10 days for Midland to respond and then another 5 days for you to reply to Midland's response.  If either motion is denied, the court then orders you to file an answer within 20 days of that order, effectively giving you a minimum of 35 additional days to file an answer.

Some have filed a MTD/MTC combo with some luck, but some have had it denied and were left in limbo (what was denied?  The MTC or MTD?) so it ended up being a mess.  I tell people the best thing to do is file an answer and MTC at the same time or as soon as possible thereafter.

In WinInAz's case, Midland alleged she lived in a non-existent county so I believe a MTD is proper.  (If the county doesn't exist, the court cannot have jurisdiction over it.)  That's why she will have the extra 35 days.

Whatever you do, you need to get the agreement before the court as soon as possible.  I recommend doing that with a MTC and you should also use an affidavit to do it.  The affidavit should read something like this:
 

Quote

I, GRRRR101 attest that I am of legal age, have the capacity to swear to the matters asserted in this affidavit and that my assertions are based on personal knowledge.  The attached agreement is a true and correct copy of the agreement that governed the Credit One account, that is the subject of this lawsuit, at the time of alleged default.

I declare under penalty of perjury the forgoing is true and correct.

[signed, date and notarized]

You are admitting to having an account with Credit One.  That's a prerequisite to being able to elect arbitration.  Unless you have some way to prove the account statements Midland will introduce are invalid, the court will almost certainly accept them as evidence that the account is yours, so you're not really giving anything away.  But just because you had a Credit One account, Midland still has to prove they own it and will also have to account for the amount they are suing you for.

But we're getting ahead of ourselves here.  When the court orders Midland to arbitrate, they will be faced with a decision to pay $1,700 in up front arbitration fees plus the costs set by the actual arbitrator, and these vary.  In my case it was $750 for one day, but that was 8 years ago and I didn't know what I was doing then.  Then the icing on the cake is if your agreement says they will advance your portion of the fees, they will also have to pay that if you ask them to, like WinInAZ did.  So do the math.  $3,000-$5,000 to collect a $700 debt vs. dismiss it and walk away. 

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10 hours ago, Harry Seaward said:

You have to file *something* within 20 days of when you were served.  The rules provide for an answer, motion to dismiss or motion for more definitive statement.  (There's also a motion to strike, but doesn't apply here.)  Unless you really don't understand what Midland is claiming in their lawsuit, a motion for more definitive statement is out, leaving answer or motion to dismiss.  If you file a MTD or motion for more definitive statement, the court has to wait 10 days for Midland to respond and then another 5 days for you to reply to Midland's response.  If either motion is denied, the court then orders you to file an answer within 20 days of that order, effectively giving you a minimum of 35 additional days to file an answer.

Some have filed a MTD/MTC combo with some luck, but some have had it denied and were left in limbo (what was denied?  The MTC or MTD?) so it ended up being a mess.  I tell people the best thing to do is file an answer and MTC at the same time or as soon as possible thereafter.

In WinInAz's case, Midland alleged she lived in a non-existent county so I believe a MTD is proper.  (If the county doesn't exist, the court cannot have jurisdiction over it.)  That's why she will have the extra 35 days.

Whatever you do, you need to get the agreement before the court as soon as possible.  I recommend doing that with a MTC and you should also use an affidavit to do it.  The affidavit should read something like this:
 

You are admitting to having an account with Credit One.  That's a prerequisite to being able to elect arbitration.  Unless you have some way to prove the account statements Midland will introduce are invalid, the court will almost certainly accept them as evidence that the account is yours, so you're not really giving anything away.  But just because you had a Credit One account, Midland still has to prove they own it and will also have to account for the amount they are suing you for.

But we're getting ahead of ourselves here.  When the court orders Midland to arbitrate, they will be faced with a decision to pay $1,700 in up front arbitration fees plus the costs set by the actual arbitrator, and these vary.  In my case it was $750 for one day, but that was 8 years ago and I didn't know what I was doing then.  Then the icing on the cake is if your agreement says they will advance your portion of the fees, they will also have to pay that if you ask them to, like WinInAZ did.  So do the math.  $3,000-$5,000 to collect a $700 debt vs. dismiss it and walk away. 

Same here,  the county was White Tank-but there is no White Tank County. 

I live in Maricopa County; however there is a  White Tank Court.  I think they messed up on mines too.

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Good advice thanks.  I am going today if I can get this done now but I'm working so I hope I make it.  Not sure exactly when the cutoff date is.  I didn't have a printer but finally replaced it last  night.

Do I have to worry about including particular rules at this point, aside from Rule 128?

I thought someone posted a link to document forms and rules that I needed, but I can't find it now either. 

 

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I'm sure I definitely won't have time to drive to a Notary here; as I will likely make it to court 30 minutes prior to close.   Will not having the affidavit notarized be a problem-can I do that part later?   Is there a workaround for now?

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12 minutes ago, GRRRR101 said:

I'm sure I definitely won't have time to drive to a Notary here; as I will likely make it to court 30 minutes prior to close.   Will not having the affidavit notarized be a problem-can I do that part later?   Is there a workaround for now?

It's not an affidavit unless it's notarized.   Do you have a bank close by?   Banks usually have notaries.

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If they said you live in "white tanks county" I would file a MTD, same as WinInAZ did.  They must have some green interns working for them. 

You don't need to worry about citing rules. Only if you file s MTD do you quote Rule 128. Otherwise you don't put that for an answer. 

An affidavit is not an affidavit if it's not notarized. You can skip the affidavit altogether, but they will argue the agreement you include isn't for your account and then you'll have to send it in reply to their response. You don't need the affidavit for anything but the MTC, so you can hold off on filing that for now and do it a few days after your answer. If you're going to file a MTD on the county thing, you don't need the agreement or affidavit. 

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Just now, BV80 said:

It's not an affidavit unless it's notarized.   Do you have a bank close by?   Banks usually have notaries.

Yes,  quite a few banks here.  Is it informal just walk -up.  I just feel pressed for time. I get off work in a few minutes and have to wait to finish my Answer since there's no  Word on this Pc I'm on.  Is the Affidavit for the MTC? 

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Just now, BV80 said:

@Harry Seaward

Would the OP's own sworn statement under penalty of perjury help?

Is certainly better than nothing but I'm guessing midland will just argue it's meaningless without being notarized. 

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2 minutes ago, GRRRR101 said:

Is the Affidavit for the MTC?

Yes. If you're pressed for time, just file the MTD or answer now and worry about the MTC when you get a little more time. 

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I just looked and saw that my response about the answer didn't go to the right question. You asked if you could say you planned to arb and deny jurisdiction, and that's what I was responding to when I said "for the answer".

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Is it customary to Admit to the first line that  of the Complaints that name the Plaintiff as a foreign entity?  I was just wondering, if it would be considred pety to DNEY this.  Truthfully, I know nothing about this company  so is it expected for me to assume what type of business they are?

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14 minutes ago, GRRRR101 said:

Is it customary to Admit to the first line that  of the Complaints that name the Plaintiff as a foreign entity?  I was just wondering, if it would be considred pety to DNEY this.  Truthfully, I know nothing about this company  so is it expected for me to assume what type of business they are?

"Foreign entity" simply means it's not incorporated in your state or doesn't have a place of business in your state.  It has nothing to do with the type of business.  If you denied it, it would be easy for them to prove it.

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You could say "I am without knowedge and information sufficient to form a belief as to the accuracy of paragraph #1 and therfore deny the same."

In the big picture this one doesn't really matter, and BV80 is right. It would take 2 seconds to prove. 

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5 hours ago, BV80 said:

"Foreign entity" simply means it's not incorporated in your state or doesn't have a place of business in your state.  It has nothing to do with the type of business.  If you denied it, it would be easy for them to prove it.

I guess I worded it wrong. I meant to say the place  of their bisiness operations.  But I see your meaning that it's pretty pointless, although I really don't know  where  they are located.  

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