GRRRR101

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

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I'm not sure what you mean "formal".  I would consider anything filed with the court to be formal.  It needs to be properly captioned and formatted, etc.

The rule regarding default is Rule 140.  See if they followed the procedures outlined in section b.
https://govt.westlaw.com/azrules/Document/NFFA668200DDF11E2B1BB87D5DA3B811F?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

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Yes, I guess anything filed would be considered formal and thank you for the rule information.  I looked over the notice again and it actually does say APPLICATION FOR ENTRY OF DEFAULT JUDGEMENT.  So in this case do I respond with a a motion to vacate still?

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So you have filed an answer and they filed an application for default??  Did you send Midland's lawyer a copy of your answer?

Either way, file a motion to strike on the grounds that you have filed an answer.  Attach the answer and any certificate of service.  Make sure you send a copy to Midland's lawyer.  This goes for anything you file with the court.  A copy always goes to opposing.

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On ‎10‎/‎27‎/‎2016 at 9:49 AM, Harry Seaward said:

So you have filed an answer and they filed an application for default??  Did you send Midland's lawyer a copy of your answer?

Either way, file a motion to strike on the grounds that you have filed an answer.  Attach the answer and any certificate of service.  Make sure you send a copy to Midland's lawyer.  This goes for anything you file with the court.  A copy always goes to opposing.

I think today is my last day. to reply,  I sent the answer and mtc, etc to attorney and filed at court but from what I understand I still need to go in and file  a motion to vacate...right?  And affidavit?  I'm just annoyed now because I have to try to take off work early again and wait for car to arrive home which I probably won't make it. 

By he way, what should my reason be for the motion or request,?  Is the fact that I filed the answer at the court but the attorney didn't receive it timely enough reason for me to get denied my request? 

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It's not a motion to vacate because default hasn't been granted yet. You simply want to have the plaintiff's application and motion for default stricken (or denied) as moot . 

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3 hours ago, Harry Seaward said:

Who dismissed what? 

Sorry, I left out all the details.  I meant that the Judge  denied Plaintiffs  application for entry of default because  i I had filed an Answer. Since  the Plaintiffs received the  copy way late/r could they  get  reinstated due to that fact? 

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No.  Default is only appropriate when you don't make an appearance (or there is gross disregard of the rules).  You've made an appearance in the form of an answer or MTD or whatever.  Plaintiff not receiving it is irrelevant to a default they moved for.  They could ask the court for sanctions because you didn't mail them a copy, but at this stage, default is not a proper sanction because your actions don't rise to the level of gross disregard.

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Gross disregard?  What in the world would make them imply  that?

The issuance the judge  sent to them was an  Corrective Sanction,  i think.  Im sure it starts with the letter 'C'. 

My Answer included a signature line  for  an  approximate date to send Plaintiff a copy of it by.   If  they received it late, would it then be considered a gross disregard?

Thanks for all the great help!

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On November 1, 2016 at 9:16 AM, Harry Seaward said:

No.  Default is only appropriate when you don't make an appearance (or there is gross disregard of the rules).  You've made an appearance in the form of an answer or MTD or whatever.  Plaintiff not receiving it is irrelevant to a default they moved for.  They could ask the court for sanctions because you didn't mail them a copy, but at this stage, default is not a proper sanction because your actions don't rise to the level of gross disregard.

so this jdb sent me  a disclosure statement with all my credit payment statements and then i RCVD an opposition to my MTC on the grounds that i didnt pay jams and file. I actually did file with Jams over 3  weeks ago but they told me to request the jdb pay filing fee. the jdb says not economical or something but its ok for them to willingly aquire a debt that wasnt paid already and come after me for something that wasnt theirs to begin with. ugh i loath jdbs.  also attached was ALONG an  unsigned order denying MTC.  SHOULD I just answer it along with jams app?

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1 hour ago, GRRRR101 said:

SHOULD I just answer it along with jams app?

Yes.  Attach everything you sent JAMS and include the response from JAMS advising you to seek payment from Midland.  The 'not economical' is their boilerplate response to arbitration.  Argue that 'economics' is irrelevant because you are exercising clauses from the agreement THEY drafted.

Remember, when they purchased the debt, they stepped into the shoes of the original creditor and inherited all rights and responsibilities as if they were the original creditor.  Whatever agreements that were in place with the OC are now in place with Midland.  For the purposes of written agreements in regard to the lawsuit they brought against you, they are the equivalent of the OC.  And you should make those arguments in reply to their response to your MTC.

You only have 5 days to get your reply filed.

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Make sure you respond to each of their points in opposition.  @Harry Seaward gave you a perfect idea of where to go.  Economic are irrelevant, this is about contract law and the supreme court says that arbitration in a contract should be honored. I would restate the ATT Mobility v. Concepcion case law from your MTC.  Point out that you have already filed with JAMS, so their statement to the contrary is incorrect. Point to Exhibits showing your JAMS confirmation letter.  State that you have paid all required consumer fees, which are $0, and that JAMS has instructed midland to pay their share and point to Exhibit showing the email or letter from JAMS asking them to pay.  I would conclude by stating that you have completed all requirements to start the arbitration process, that well established case law favors arbitration in a contract and that this contract contains an arbitration clause which should be honored and ask the court to grant your MTC.

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1 hour ago, Harry Seaward said:

Argue that 'economics' is irrelevant because you are exercising clauses from the agreement THEY drafted.

Regarding costs/economics, do you think that the irrelevant argument is better than the 3 prong test argument mentioned in the Flowerm89 thread?

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5 minutes ago, Xerxes said:

Regarding costs/economics, do you think that the irrelevant argument is better than the 3 prong test argument mentioned in the Flowerm89 thread?

I completely forgot about that discussion.  Having read it, I still don't even remember it that much.  Thanks for bringing it back up!  I think it's certainly a good thing to include in response any time a business tries to argue against arbitration.  Between that and the fact that the arbitration clause comes from their agreement, I can't see any way Midland shouldn't be required to honor the arbitration agreement.

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5 minutes ago, Harry Seaward said:

I completely forgot about that discussion.  Having read it, I still don't even remember it that much.  Thanks for bringing it back up!  I think it's certainly a good thing to include in response any time a business tries to argue against arbitration.  Between that and the fact that the arbitration clause comes from their agreement, I can't see any way Midland shouldn't be required to honor the arbitration agreement.

I never saw this discussion previously myself.  Since it is AZ case law, it can't hurt to include it in response to their opposition regarding costs, but I would still make a point to mention that this is THEIR contract of adhesion.  I would use that exact phrase too.  Meaning, they wrote the contract unilaterally with no input from the consumer as a take it or leave it contract.  If arbitration is such a hardship, why would they include that? No one forced them to include it, but the did, and the consumer is well within his rights to invoke the clause.

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On 11/16/2016 at 10:49 AM, fisthardcheese said:

Make sure you respond to each of their points in opposition.  @Harry Seaward gave you a perfect idea of where to go.  Economic are irrelevant, this is about contract law and the supreme court says that arbitration in a contract should be honored. I would restate the ATT Mobility v. Concepcion case law from your MTC.  Point out that you have already filed with JAMS, so their statement to the contrary is incorrect. Point to Exhibits showing your JAMS confirmation letter.  State that you have paid all required consumer fees, which are $0, and that JAMS has instructed midland to pay their share and point to Exhibit showing the email or letter from JAMS asking them to pay.  I would conclude by stating that you have completed all requirements to start the arbitration process, that well established case law favors arbitration in a contract and that this contract contains an arbitration clause which should be honored and ask the court to grant your MTC.

JAMS sent an email and stated that they needed my forms to be in doc format; so apparently the application hasn't been processed since the application was image format.  I had a death in the family and now I'm sort of getting lost in all this and trying to get time off my jobs to make it to court I think Monday is the last day to respond, but that is also my pretrial date.  Shoudl I just show up early and file a response anyway.  Also, should I prepare a hardship letter of some kind to reduce the wage garnishment amount in case a default judgement is granted or something.  I don't know how the pre-trial works.  

Also, I do have the receipt of application to Jams via email that she sent back around 10/27/16 and her recent correspondence.  The JAMS representative told me  they offer waivers of fees only in CA but that I should send request of fees to creditor and that I can file free for now.  Which I did state on my notice to ARB that I mailed to JDB.

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File your response to their opposition asap. Have more copies with you and let the judge know you just filed it. Assuming you are within the time limit, he should allow it.  Hand a copy to the attorney.

The only thing you need to focus on is preparing to argue why you should be granted the MTC. Prepare to combat the arguments they brought up in their opposition and to explain to the judge that its your contractual right and to cite all the case law provided above.  There cant be a default judgement if you show up, so forget all that nonsense.

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On 11/19/2016 at 7:46 AM, fisthardcheese said:

File your response to their opposition asap. Have more copies with you and let the judge know you just filed it. Assuming you are within the time limit, he should allow it.  Hand a copy to the attorney.

The only thing you need to focus on is preparing to argue why you should be granted the MTC. Prepare to combat the arguments they brought up in their opposition and to explain to the judge that its your contractual right and to cite all the case law provided above.  There cant be a default judgement if you show up, so forget all that nonsense.

Ok. The opposition they sent dated 11/11 I received on the 16th i guess and states i had 10 days. I am going to do it today and hopefully have  time left to prep so i  look like a complete idiot.  Also, should I title the paper as  'Response to Opposition of Motion to Compel' , or 'Response to Request for Motion to Deny Arbitration?'

 

Also, how do I address the fact that they have referenced this suit is based on an Auto default contract; but it is actually for a Credit Card "breached contract"?  Or would it seem petty, or only require me to address it at the Pre-Trial tomorrow?

 

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Also, how do I address the fact that they have referenced this suit is based on an Auto default contract; but it is actually for a Credit Card "breached contract"?  Or would it seem pety, or only require me to address it at the Pre-Trial tomorrow?

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On 11/16/2016 at 9:25 AM, Harry Seaward said:

Yes.  Attach everything you sent JAMS and include the response from JAMS advising you to seek payment from Midland.  The 'not economical' is their boilerplate response to arbitration.  Argue that 'economics' is irrelevant because you are exercising clauses from the agreement THEY drafted.

Remember, when they purchased the debt, they stepped into the shoes of the original creditor and inherited all rights and responsibilities as if they were the original creditor.  Whatever agreements that were in place with the OC are now in place with Midland.  For the purposes of written agreements in regard to the lawsuit they brought against you, they are the equivalent of the OC.  And you should make those arguments in reply to their response to your MTC.

You only have 5 days to get your reply filed.

I'm going through the credit card statements now and just wondering, are they allowed to charge me for interest and late fees?  I think my actual debt is not even half of what they are stating  after removing the fees and interest.  

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Just now, GRRRR101 said:

I'm going through the credit card statements now and just wondering, are they allowed to charge me for interest and late fees?  I think my actual debt is not even half of what they are stating  after removing the fees and interest.  

I see I also have that affidavit from the secretary or however she is.  I really wish I had the time to really put all my time into this and give it my all.  I really hate going into this without having time to fully devote myself into reading and researching every single line.  Well, I guess I'll just have to give it my best shot and go with it.  lol

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47 minutes ago, GRRRR101 said:

I'm going through the credit card statements now and just wondering, are they allowed to charge me for interest and late fees?  I think my actual debt is not even half of what they are stating  after removing the fees and interest.  

 The OC is allowed to charge interest and fees.  If the credit card statements show the interest and fees, it's allowed. 

 

45 minutes ago, GRRRR101 said:

I see I also have that affidavit from the secretary or however she is.  I really wish I had the time to really put all my time into this and give it my all.  I really hate going into this without having time to fully devote myself into reading and researching every single line.  Well, I guess I'll just have to give it my best shot and go with it.  lol

Secretary from what company?   Who is the JDB?

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So I added up all my purchases/payments/fees and interest.  If I deduct all the interest and late fees there is only a $6 debt.  Not $600 but $6.  I don't understand how this can be possible for them to legally buy this debt from someone who literally owes nothing but late fees and interest.  Do I have room for any type of defense on the interest/fees charged?  I thought I read somewhere that you can't be charged that, but perhaps I'm thinking of lawyer fees or something, but I'm pretty sure that wasn't it because you can actually be liable for the lawyer costs.  Perhaps the fees/interest are enforceable in AZ and that's why they decided to sue me now after the original creditor saw that I was trying to pay.  Now that I look over all the statements, I recall this account and specifically speaking with them requesting they closed the account since I had a hardship but they refused.   I guess AZ may actually allow collection of all these bloated fees and that may be why they wait for me to move here to sue now.   

I hope I don't run out of time it seems like so many different things are boggling me now.  I am trying to do what @fisthardcheese said and simply focus on the paperwork and tomorrow but there seems to be so many things I think they may be unfairly getting away with.  Any oppions and feedback are greatly appreciated, I'll still try and research some more along the way.  

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Sorry, I'm so boggled with time I really didn't provide details didn't even have time to thumb through the docs again.  

They have so much crap paperwork with this I even have things that don't apply to my case.  So may affidavits from people in totally different states swearing that they have knowledge of my account and all that.   A bill of sale of real property.... I'm so lost, they are talking about a auto default and this is for a credit card from Capital One that only gave me $300 credit line, actually $225 since I had to pay the security fee up front.  The debtor is Midland Funding llc.  

I wish I had a scanner.  I will try to take some screenshots and upload them.  This is too much, they are all over the place with this.   Bad enough they listed the wrong county on their complaint.  Any help would be appreciated.  

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