GRRRR101

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

Recommended Posts

Waiting on my car now, to go file the answer at minimum.  I have been struggling with working 18 hr days and trying to get this done before the deadline.  If anyone can offer some quick answers I would be  very grateful.  I only have my answers on the Answer form.  What defenses do I need to put , or is this ok since I will be filing a motion to Arbitrate.  Also, do i just need the contract and answer form which also states that i will send notice to the plaintiff on said date/time.  And bring the MTC tomorrow w/affidavit? 

Share this post


Link to post
Share on other sites

They are so shady I wouldn't be surprised if they were all over.  I guess it doesn't matter, but there's a lot I don't know about the AZ law here-wasn't' sure if somewhere down the line it would matter.  But thanks for the feedback, this is so confusing and stressful.  I can't seem to get past the last part of my answer; also struggling with how to answer the jurisdiction question without sounding rude. Any what to simply state i want arbitration and the court lacks jurisdiction?    Also, can that be my affirmative defense.  I so need to have this done by tomorrow and I have to work all day and night again.  :(

 

Share this post


Link to post
Share on other sites

I'm not sure I understand what this post was actually stating about Midland and AZ, but it looks interesting.

 

Have you ever heard of Roman v Midland Credit Funding?

Its a real recent (just in the last couple of months) class action suit that is being settled out of court. It appears that some 20-some thousand people in Illinois and Indiana were sued by MCM (Encore) and presented with affidavits from an employee of Midland that contained false information. Midland has agreed to pay 200-some thousand dollars in restitution to the Plaintiffs in the class action suit rather than go through the cost of litigation (and although Midland has denied any wrong-doing, this sounds like an admission to me...IMHO).

RL


 

Okay...I'm not an attorney but I can read and write and, on occasion, comprehend. Take this for what its worth...

 

  • 900 posts and hasn't been

Do you mean Midland Funding LLC (or Midland Credit Management, Inc.) ?

I was curious how "my" Plaintiff Midland Finding LLC

is registered with Arizona Corporation Commission,

and found this:

Arizona Corporation Commission

10/01/2010 State of Arizona Public Access System 8:33 PM

Corporate Inquiry

File Number: L-1339563-7

Corp. Name: MIDLAND FUNDING LLC

Domestic Address 2209 E JOY RANCH RD

PHOENIX, AZ 85086

Statutory Agent Information Agent Name: DEAN ALAN JENKINS

Agent Mailing/Physical Address:

2209 E JOY RANCH RD

PHOENIX, AZ 85086

Agent Status: APPOINTED 01/18/2007

Agent Last Updated: 01/25/2007

Additional Corporate Information Corporation Type: DOMESTIC L.L.C. Business Type:

Incorporation Date: 01/18/2007 Corporate Life Period: PERPETUAL

Domicile: ARIZONA County: MARICOPA

Approval Date: 01/25/2007 Original Publish Date:

Manager/Member Information DEAN A JENKINS

MEMBER

2209 E JOY RANCH RD

PHOENIX,AZ 85086

Date of Taking Office: 01/18/2007

Last Updated: 01/25/2007

ARTICLES OF ORGANIZATION 01/18/2007

Microfilm Location Date Received Description

32018000809 01/18/2007 ARTICLES OF ORGANIZATION

Share this post


Link to post
Share on other sites
2 hours ago, GRRRR101 said:

I cannot find this agreement anymore.  I just have a huge list of pdf but nothing for credit 1 bank.  

You were given the link to find your agreement way back on page 1 of this thread.

http://www.consumerfinance.gov/credit-cards/agreements/issuer/credit-one-bank/

Just file your answer that denies all of their allegations and for defense list:

1.  Lack of subject matter jurisdiction.  Court does not have jurisdiction over this matter because the contract contains a private arbitration clause and arbitration has been elected by the defendant.

2. Arbitration.  The underlying contract contains a private arbitration provision and Defendant has chosen the arbitration forum to pursue this matter.

Share this post


Link to post
Share on other sites

Arbitration is not a "defense". Where Midland has alleged the court has jurisdiction, answer this way:

"Denied.  I have elected private contractual arbitration per the attached credit card agreement, which states in pertinent part, 'arbitration removes both parties right to litigation (or whatever it actually says)'."

And then include a copy of the agreement with the answer. 

Share this post


Link to post
Share on other sites

It doesn't really matter that much where you get the arbitration notice in the answer. You're simply setting the stage for your MTC to come. 

Share this post


Link to post
Share on other sites
20 hours ago, Harry Seaward said:

Arbitration is not a "defense". Where Midland has alleged the court has jurisdiction, answer this way:

"Denied.  I have elected private contractual arbitration per the attached credit card agreement, which states in pertinent part, 'arbitration removes both parties right to litigation (or whatever it actually says)'."

And then include a copy of the agreement with the answer. 

"Arbitration and Award" is an affirmative defense in most states.  I can't find specifics on AZ, but that is what I was referring to as a defense.

Share this post


Link to post
Share on other sites
6 hours ago, fisthardcheese said:

"Arbitration and Award" is an affirmative defense in most states.  I can't find specifics on AZ, but that is what I was referring to as a defense.

That defense is based upon "arbitration AND award".  Note the "and".

It means that arbitration has take place AND an award has been issued.

 

 

Share this post


Link to post
Share on other sites
On 10/13/2016 at 6:18 PM, fisthardcheese said:

You were given the link to find your agreement way back on page 1 of this thread.

http://www.consumerfinance.gov/credit-cards/agreements/issuer/credit-one-bank/

Just file your answer that denies all of their allegations and for defense list:

1.  Lack of subject matter jurisdiction.  Court does not have jurisdiction over this matter because the contract contains a private arbitration clause and arbitration has been elected by the defendant.

2. Arbitration.  The underlying contract contains a private arbitration provision and Defendant has chosen the arbitration forum to pursue this matter.

Thanks.  I had the link still but I couldn't find the actual pdf for 2014 archive that I found there.  I guess after reading it I thougt I downloaded it but had actually downloaded that huge zip file.  Finally found it after by getting the pdf# from the excel file inside of it.  Thanks again.  

I filed a quick answer on Thurs, didn't have time to proof but i did reference a a defense reg the jurisdiction and arbitration at the bottom, but I didn't word it right I'm sure I left out " lack of subject manner."

Share this post


Link to post
Share on other sites

Also,  do you think this section of the agreement is the relevant portion to quote on the MTC?  

ARBITRATION
{PLEASE READ THIS PROVISION OF YOUR CARD AGREEMENT CAREFULLY. IT PROVIDES THAT EITHER YOU OR WE CAN REQUIRE THAT ANY CONTROVERSY OR DISPUTE BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. IN ARBITRATION, YOU MAY CHOOSE TO HAVE A G AND BE REPRESENTED BY COUNSEL. Agreement to Arbitrate: }

------or just this section below?-------

"You and we agree that either you or we may, without the other’s consent, require that any controversy or dispute between you and us (all of which are called “Claims”), be submitted to mandatory, binding arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing this Agreement."

I was concerned about the reference to "interstate commerce".  Does that apply to normal consumer business, or some kind of international corp transactions ?

 

 

 

Share this post


Link to post
Share on other sites
1 hour ago, GRRRR101 said:

I was concerned about the reference to "interstate commerce".  Does that apply to normal consumer business, or some kind of international corp transactions ?

"Interstate commerce" is business between the states.   It applies to companies that conduct business from one state to another.

Share this post


Link to post
Share on other sites
On ‎10‎/‎13‎/‎2016 at 6:57 PM, Harry Seaward said:

Arbitration is not a "defense". Where Midland has alleged the court has jurisdiction, answer this way:

"Denied.  I have elected private contractual arbitration per the attached credit card agreement, which states in pertinent part, 'arbitration removes both parties right to litigation (or whatever it actually says)'."

And then include a copy of the agreement with the answer. 

Ok.  I had the lack of standing on my draft Answer but not on the final., I was out of time setting up new printer so hopefully that doesn't cause the answer to be dismissed.   I heard

somewhere  that AZ might dismiss an Answer if no Affirmative defense is stated or implied somehow.  Is that true? 

I won't have the opportunity to go back with the MTC and agreement until Wed. It wasn't attached to the Answer.

I called the Court today to check the status of my fee waiver; no update available.

They told me the answer's not filed until it's paid for and I was suppose to get a reply by Friday from them.  So hopefully,  that doesn't cause me to miss the 20day deadline.

Share this post


Link to post
Share on other sites

My Arbitration agreement isn't as consumer friendly with the wording about costs as the others I've seen posted here.  Is there any line in this document that I can refer to to suggest the Plaintiff pays for the cost?  

Costs: If we file the arbitration, we will pay the initial filing fee. If you file the arbitration, you will pay the initial filing fee, unless you seek and qualify for a fee waiver under the applicable rules of the arbitration administrator. We will reimburse you for the initial filing fee if you paid it and you prevail. If there is a hearing, we will pay any fees 
of the arbitrator and arbitration administrator for the first day of that hearing. All other fees will be allocated in keeping with the rules of the arbitration administrator and applicable law. However, we will advance or reimburse filing fees and other fees if the arbitration administrator or arbitrator determines there is other good reason for requiring us to do so, or we determine there is good cause for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, except that the arbitrator shall apply any applicable law in determining whether a party should recover any or all expenses from another party.     

So do I need to list a reason for requesting them to advance the fees on  my behalf?  I just don't know how it might affect the outcome if Ii'm forced to note that the cost will cause a burden on me at this time.  I wouldn't want to give off the impression that I am not serious about filing the ARB due to fianncial burdens.  Nor do I want to give off info on my income or financial status.  Any suggestions on this?

Share this post


Link to post
Share on other sites

Don't worry about the fees. JAMS or  AAA will open the case without them and send you an invoice later.  Jams has actually started demanding the fees from the JDBs before asking you to pay. Of course they never pay so therefore you won't either. 

  • Like 1

Share this post


Link to post
Share on other sites
18 hours ago, Harry Seaward said:

Don't worry about the fees. JAMS or  AAA will open the case without them and send you an invoice later.  Jams has actually started demanding the fees from the JDBs before asking you to pay. Of course they never pay so therefore you won't either. 

I think I totally screwed up, I raced up there unprepared and filed myanswer last week which was without my cc agrmt by the way. Just been trying to get time off work when my car is home so i could finish everything. I. Alled today to try and. See if i could file revised Answer, mtcWith cc agrmt and certified letter hasnt even been mailed. She said no i already have a pretrial hearing date and i could bringIt then. Is it normal to have a hearng? Does that mean Im. Going to trial? Should i not contact jams? I thought aomeone said the attorneys try to call ur bluff if you havent contacted jams, and judge thinks u are filing a frivilous. Mtc with no intent to pursue ARB. what do you think ?

Share this post


Link to post
Share on other sites
23 hours ago, Harry Seaward said:

Don't worry about the fees. JAMS or  AAA will open the case without them and send you an invoice later.  Jams has actually started demanding the fees from the JDBs before asking you to pay. Of course they never pay so therefore you won't either. 

  Just the summons/complaint, and my answer.  Then this pretrial conference.

Share this post


Link to post
Share on other sites

Ok, you're fine. Get your MTC together and filed ASAP. If you don't get a ruling on it before your hearing, you can ask the judge to rule on it at the hearing. 

Share this post


Link to post
Share on other sites
  1. 54 minutes ago, Harry Seaward said:

    Ok, you're fine. Get your MTC together and filed ASAP. If you don't get a ruling on it before your hearing, you can ask the judge to rule on it at the hearing. 

    I tried but the same ole rude clerk told me I couldnt file The MTC since I have a pending Pretrial.  I tried to determine if she was giving an opinion or fact but she hungup on me.

  2. I did find out that the judge granted my waiver /deferment of fees request.

  3. Today I started the paperwork for jams and was going to send a  notice of that to the attorney since i never sent the  letter of intent to compel arbitration.   Should i do that now in case they try to  bypass my demand at pretrial?

  4. So I can still file the MTC., can i attach the credit card agreement to that? they can't reject my paperwork, right? 

  5. Should I send letter to attorney just to cover myself in case it comes up later....like saying its untimely.? It is likely  too  late already. 

  6. Do you think a revised Answer  is needed to update minor details but more importantly the date that notes when letter to attorney was mailed?  I don't want them holding it against me later. 

  7. I'm not sure if the clerk was just busy, giving bad advice or trying to keep money and cases in the court but I don't feel right about doing nothing considering I already left so much out.

Edited by GRRRR101
Adding info

Share this post


Link to post
Share on other sites
13 hours ago, Harry Seaward said:

Ok, you're fine. Get your MTC together and filed ASAP. If you don't get a ruling on it before your hearing, you can ask the judge to rule on it at the hearing. 

^^^^^^^^

Share this post


Link to post
Share on other sites

The clerks aren't allowed to give legal advice.  It's not their job to decide what's 'proper' and cannot refuse to accept a filing.  If you get stonewalled, ask for a supervisor.  I would get a voice recorder app on my phone and start recording before you get to the window.  You want a record if they cause you to not be able to file documents in YOUR case.  In AZ, you don't need anyone's permission to record a conversation as long as you are a party to that conversation so you don't even need to tell them they are being recorded.

So this is what you need to do.
1. Send a letter to Midland's lawyer telling them you want arbitration to settle their claims against you.
2. File a MTC with the card agreement attached and an affidavit to introduce the agreement.

Do both of those things in that order, but very close to each other, like the same day, if possible.

We talked about the affidavit here:
http://www.creditinfocenter.com/community/topic/328212-jdb-strikes-againin-az/?do=findComment&comment=1349322

You don't need to amend your answer.  Your MTC will suffice to notice everyone involved that arbitration has been elected.

For anything you file with the court, you must send a copy to opposing.  If it's a motion (as in Motion to Compel), the beginning of your motion must include the required language from Rule 128(c ):
https://govt.westlaw.com/azrules/Document/N6EAFC5100DDE11E2A626EF9DD6EFA1DD?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
"You have a right to file a written response to this motion within ten (10) days from the date this motion was served. Your response must be filed with the court, and copies of your response must be served on the other parties as provided by Rule 120 of the Justice Court Rules of Civil Procedure. The court may treat your failure to respond to a motion as your consent that the motion be granted.”

Share this post


Link to post
Share on other sites
On October 24, 2016 at 9:42 AM, Harry Seaward said:

The clerks aren't allowed to give legal advice.  It's not their job to decide what's 'proper' and cannot refuse to accept a filing.  If you get stonewalled, ask for a supervisor.  I would get a voice recorder app on my phone and start recording before you get to the window.  You want a record if they cause you to not be able to file documents in YOUR case.  In AZ, you don't need anyone's permission to record a conversation as long as you are a party to that conversation so you don't even need to tell them they are being recorded.

So this is what you need to do.
1. Send a letter to Midland's lawyer telling them you want arbitration to settle their claims against you.
2. File a MTC with the card agreement attached and an affidavit to introduce the agreement.

Do both of those things in that order, but very close to each other, like the same day, if possible.

We talked about the affidavit here:
http://www.creditinfocenter.com/community/topic/328212-jdb-strikes-againin-az/?do=findComment&comment=1349322

You don't need to amend your answer.  Your MTC will suffice to notice everyone involved that arbitration has been elected.

For anything you file with the court, you must send a copy to opposing.  If it's a motion (as in Motion to Compel), the beginning of your motion must include the required language from Rule 128(c ):
https://govt.westlaw.com/azrules/Document/N6EAFC5100DDE11E2A626EF9DD6EFA1DD?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)
"You have a right to file a written response to this motion within ten (10) days from the date this motion was served. Your response must be filed with the court, and copies of your response must be served on the other parties as provided by Rule 120 of the Justice Court Rules of Civil Procedure. The court may treat your failure to respond to a motion as your consent that the motion be granted.”

ok,. Did all paperwork then pc crashed, been so out of commission for 2 days . I begged bosses for the morning off, hopefully the grant it and all the mailing costs for express and certifications are in the budget otherwise i will need to wait until Friday. which means my leaves me without transpo until 4:30 and they close at 5. Life just really sux right now

 

.  Of course, Ijust received their t their ENTRY FOR DEFAULT in mail today. Iseems that clerk didnt tell Plaintiff to  hold their filings untilpretrial. perhaps i will include her statement in my motion as reason for late filing with her name.  as it stands do i need to file a motion to vacate or something like that as an answer to this ENTRY FOR DEFAULTJUDGEMENT.  time to stop all direct deposits? LOL

Share this post


Link to post
Share on other sites

You should have first received from Midland an application for default, in which they are required to give you notice that you have 10 extra days to file your answer.  If they did not do this but instead directly filed a motion for default, use that as your grounds for moving to strike their motion.

Share this post


Link to post
Share on other sites
1 hour ago, Harry Seaward said:

You should have first received from Midland an application for default, in which they are required to give you notice that you have 10 extra days to file your answer.  If they did not do this but instead directly filed a motion for default, use that as your grounds for moving to strike their motion.

OK will do that in the morning,  Does it need to be a formal response or just answer statement titled motion to strike entry of default judgement? 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.