GRRRR101

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

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15 hours ago, debtzapper said:

You did very well for yourself.  You kept your cool and stood your ground and asked for a dismissal.  In collection lawsuits, judges aren't used to seeing a pro se defendants  showing up in court, much less speaking calmly and articulately the way you did.  I think the judge probably respected the way you conducted yourself.

Enjoy your Thanksgiving Day.

  

Thanks to you guys! I am just thankful tor the knowledge I am recieving here. I wouldnt say I wasn't nervous though because I was. But I got through it with what I learned.  Judges and court rooms make me extremely nervous sometimes, but the Judge had a very nice demeanor which set me at ease and  i managed to not forget everything. lol .   Thank you and Happy Thanksgiving too!

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Send Jams an email to tell them the case is pending dismissal in court and ask if they will please hold it open on their end until Dec 15, just in case it doesn't get dismissed.

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If you pay the 250 to JAMS, those fees are not refundable. However, If you pay them, it shows you are serious about going to arb. If your MTC is granted, and they want to dismiss, you can ask for your JAMS fees to be paid back to you by the plaintiff since they refuse to proceed, and your compel motion was granted.

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On 11/26/2016 at 7:11 AM, shellieh98 said:

If you pay the 250 to JAMS, those fees are not refundable

Are you sure about this?  I thought JAMS and AAA refunded the initiation fees when the Plaintiff never responds.

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On 11/23/2016 at 3:34 PM, Harry Seaward said:

Send Jams an email to tell them the case is pending dismissal in court and ask if they will please hold it open on their end until Dec 15, just in case it doesn't get dismissed.

She knows, and she agreed to the temporary hold .

 If the Plaintiff still argues about my application not being official if it wasn't paid for yet.  But the Judge wouldn't order a judgement for Plaintiff on those grounds if I show correspondence with JAMS and an application at least, right?  

I checked the case status and I see the Plaintiff's Proof of Discovery of Service was filed 2 days after the Pre-trial date.  They may just try to wait until the last day to file something to make me think it's over; but little do they know I will still be filing my response to their Opposition to the MTC to Arb tomorrow.  

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2 hours ago, GRRRR101 said:

But the Judge wouldn't order a judgement for Plaintiff on those grounds if I show correspondence with JAMS and an application at least, right?

There's no way to know what the judge will do.

Your initiating with jams is irrelevant to the court's obligation to order you into arbitration upon a showing of a valid agreement to arbitrate. The only way the court can not order you into arbitration is if Plaintiff can show there is no agreement to arbitrate. There's nothing in any statute or caselaw that says you have to have paid your fees,or even initiated, for that matter. Midland is trying to bamboozle the court. And just so you know, it might work. Just be ready to point to ARS 12-1502 that says the court "shall" order the parties into arbitration, with the exception of the "plaintiff denies" condition that doesn't yet exist in your case. Hopefully the court does the right thing but if not, it wouldn't be the first time a court didn't do the right thing.

Be prepared to show the jams correspondence, but be prepared for the possibility that he will deny your MTC no matter what you bring. 

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This is one of AZ's leading cases on arbitration, having been cited 85  times since 2007.   Note how the court quotes from ARS-12-1502.:

https://scholar.google.com/scholar_case?case=5485495856055899638&q=ars-12-1502+shall+order+parties&hl=en&as_sdt=4,3

But, when a party "denies the existence of [an] agreement to arbitrate, the [superior] court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party." A.R.S. § 12-1502(A). 

I think I would include the case name, citation and the quote in your MTC.  If you click on the link, all the info is there.

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On 11/29/2016 at 5:41 PM, Harry Seaward said:

There's no way to know what the judge will do.

Your initiating with jams is irrelevant to the court's obligation to order you into arbitration upon a showing of a valid agreement to arbitrate. The only way the court can not order you into arbitration is if Plaintiff can show there is no agreement to arbitrate. There's nothing in any statute or caselaw that says you have to have paid your fees,or even initiated, for that matter. Midland is trying to bamboozle the court. And just so you know, it might work. Just be ready to point to ARS 12-1502 that says the court "shall" order the parties into arbitration, with the exception of the "plaintiff denies" condition that doesn't yet exist in your case. Hopefully the court does the right thing but if not, it wouldn't be the first time a court didn't do the right thing.

Be prepared to show the jams correspondence, but be prepared for the possibility that he will deny your MTC no matter what you bring. 

I went online and checked the case status, which shows only a court date for an oral hearing next month.  Is that going to be the date that we present our arguments and the Judge decides yay or nay on the Arbitration?  I suppose I need to contact JAMS to continue on the case now and find out how to present the request for the filing fee from the Plaintiff.   I'm sure they will give me a hard time on that.  I also mailed my Response off to them later than I was suppose to so hopefully that doesn't become a huge issue. Well at least the date is after Xmas.  

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On the 21st you said the court was going to dismiss the case if there was no explanation from the Plaintiff for their no-show on that date.  What happened since that there is now a hearing scheduled for next month?

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8 minutes ago, Harry Seaward said:

On the 21st you said the court was going to dismiss the case if there was no explanation from the Plaintiff for their no-show on that date.  What happened since that there is now a hearing scheduled for next month?

I'm not sure acually. I saw that a notice was being mailed this week to me regarding an Oral Appeance. I'm guessing that the Plaintiff replied with some type of acceptable excuse as to why they did not appear and the dismissal was not approved. 

They only other info I saw on the court records was that the Plaintiff's document summary that the judge hadnt received yet when I mentioned it at the PTC, were received by the court  2 days after the PTC.  

heres a overview.

PTC on Nov. 21

plaintiffs docs summary rcvd 11/23

i filed my response to the opposition to dismiss my MTC ARB dec. 1-(which was my deadline for ext. that was granted at the PTC)

As of dec 1 the clerk had no update on the dismissal or foregoing case status.

I checked court database a few days ago and all i saw was the oral hearing date scheduled - notice mailed 12/7. I havent rcvd it yet. 

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They can't just send a text message or something to the judge re: the no show. They had to have filed something with the court. I would file a motion to dismiss ASAP, citing their no-show at the PTC and judge's statements that day that he would dismiss the case in 10 days.

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6 hours ago, Harry Seaward said:

They can't just send a text message or something to the judge re: the no show. They had to have filed something with the court. I would file a motion to dismiss ASAP, citing their no-show at the PTC and judge's statements that day that he would dismiss the case in 10 days.

+1

I would have filed an MTD the morning of day #11 after the judge gave them 10 days to give a reason and nothing else was filed.  Never give your opponents extra time and more chances for free.  Stay on top of the case and jump on them when they don't meet a deadline.

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AAA does, JAMS seldom does, if you initiated it. But sometimes they will start you're case if it is in you're contract that OC pays for it. In that case you could start without the 250.00

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On 12/9/2016 at 9:36 AM, Harry Seaward said:

On the 21st you said the court was going to dismiss the case if there was no explanation from the Plaintiff for their no-show on that date.  What happened since that there is now a hearing scheduled for next month?

Actually, I did what you or someone else mentioned a while back on this...I went in and filed a MTD based on the no show for the Pre-trial conference (Plaintiff didn't show for the telephonic appearance), and instead of dismissing like the Judge said he would at the PTC if the Plaintiff didn't have good reason he didn't dismiss.  Instead they scheduled an Oral argument hearing....for this Friday.   I received a motion to strike my MTD from the Plaintiff stating that he didn't appear because when he called the clerk didn't put the call through ..(some bologna like that).  Apparently the judge did not require this reason to go in writing which is why I assumed the Plaintiff didn't respond with a reason for the no-show.  Now, I'm stuck still dealing with this crap, and I'm unemployed now.  I even wrote in the MTD that I lost my job shortly after I took off work to attend the PTC, and the Plaintiff didn't show up.   

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Ok, you need to focus on two things at the oral hearing.  First, that Arizona Revised Statutes 12-1502 requires the court to order the parties into arbitration upon showing of a valid agreement to arbitrate, and the only way the court can properly deny the MTC is if the opposing party denies the existence of the agreement and the court then it finds the agreement not valid.  And second, you have shown said agreement in accordance with 12-1502, and even gone so far as to introduce it via sworn testimony to be the correct agreement for the account.

Until and unless the plaintiff denies there is an agreement to arbitrate, the court should summarily grant the MTC.  If plaintiff now denies the agreement you provided is the correct one for the account, where is the agreement they claim is the correct one, and if they do show up with an agreement, where is their expert witness to introduce it?  Their attorney cannot testify, so unless there is a witness from the plaintiff, the court should not consider anything their attorney says to hold more, or even equal, weight than the sworn statements you've made, and any agreement they produce should be stricken as irrelevant without a witness to introduce it. <------  You need to actually make this argument in court.

And now, for some case law.  I would print out a couple copies of the following, one to provide to the judge and another for the other side, if they show up.  Make sure you also have a copy for yourself.

 

The arbitration provision in the credit card agreement is mandatory if a party wishes to elect arbitration. As our Supreme Court noted:

Quote

The sole question presented by this appeal is whether ASARCO is entitled to enforce the provisions of paragraph 30 relating to compulsory arbitration. Initially
we agree with ASARCO that the public policy of Arizona favors arbitration as a means of disposing of controversy. Jeanes v. Arrow Insurance Co., 16 Ariz. App.
589, 494 P.2d 1334 (1972).

Clarke v. ASARCO Inc., 123 Ariz. 587, 589, 601 P.2d 587, 589 (1979). 

Arbitration is a favored method for resolving disputes where a matter is subject to arbitration. As our Court of Appeals stated:

Quote

Therefore, in order to accomplish this purpose, arbitration clause should be construed liberally and any doubts as to whether or not the matter in question is subject to arbitration should be resolved in favor of arbitration. Metro Industrial Painting Corp. v. Terminal Construction Co., 287 F.2d 382 (2nd Cir. 1961); United Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed.2d 1409 (1960); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 402 (2nd Cir. 1959); Lundell v. Massey-Ferguson Services N.V., 277 F. Supp. 940 (N.D. Iowa 1967); Southern Bell Telephone & Telegraph Co. v. Louisiana Power and Light Co., 221 F. Supp. 364 (D.La.1963); Firestone Tire & Rubber Co. v. United Rubber Workers of America, Local Union No. 100, AFL-CIO, 168 Cal.App.2d 444, 335 P.2d 990 (1959); Bewick v. Mecham, 26 Cal. 2d 92, 156 P.2d 757 (1945). The federal courts have adopted what could be termed the ‘positive assurance’ test
which requires arbitration unless it can be said with ‘positive assurance’ that the arbitration clause does not cover the dispute:

New Pueblo Constructors, Inc. v. Lake Patagonia Recreation a&#036;&#036;'n, 12 Ariz. App. 13, 16, 467 P.2d 88, 91 (1970).

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They will probably try to argue arbitration is more costly or some other reason the court should deny the MTC.  Until and unless they deny there is an agreement to arbitrate, the court is bound by the statutes and caselaw I cited to order the parties into arbitration.  And again, if they decide to deny there is an agreement to arbitrate, whatever comes out of the lawyer is just a bunch of hot air without a witness to make sworn testimony.

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Well, it seems that I finally screwed this up royally.    I had my date wrong for the Oral Appearance and missed it so I'm screwed.  I immediately contacted the court and they already dismissed both my MTC and The MTD due to thePlaintiffs no-show. I received that notice and all it states is there is another Pretrial Conference but I don't see a set date. Since they dismissed the motions does that mean no Arb and going straight to court? Funny how it is ok for the Plaintiff to miss but not the defendant.  Iwas so upset. I think the date on the website  either changed or I just had it wrong. I have so much crap going on with different agencies and stuff I'm just overwhelmed and feel like giving up since I am unemployed again now and have no income at all.  Any ideas going fwd?   I plan on checking the court website later to see if there is more info available since the clerks are of little help. It's funny that the notice the plaintiff sent me I found 1 morning I the street all wet and torn from the rain.  why didn't it get sent to my mailbox I wonder. 

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I just looked back through your thread and saw the only objection you said they had was that arbitration was cost prohibitive. Did they ever make any other objection? Did you file a reply to their opposition?

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Yes, I filed a Reply to theirOpposition. Thanks for taking time to look it over. I just spoke with the court clerk and they haven't did the calendar scheduled for the PTC. I was just wondering if I should file another MTc or some request to set aside the denial of my motions. It seems the Plaintiff was able to get my MTD set aside when he missed his court date.. Just wondering .

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You're in a pickle.  You only have 14 days to appeal a denied MTC arbitration.  If you try to renew the motion or ask for it to be reconsidered, the court could deny your request and by that time, your 14 days to appeal the denied  MTC will have expired, you likely can't appeal the 'reconsideration' ruling until the conclusion of the trial.

I'll see what others think, but I believe your best shot here is to appeal the denied  MTC. The only proper grounds for denying that motion is if the court finds there is no valid agreement. If that issue was never raised, it's very likely not the reason for the denial.  While a court can deny your motion as a sanction for your failure to appear, I'm guessing the appellate court would be looking for that reasoning in the record, and I'll bet it's not there. You would have to get a copy of the recording of the hearing you missed to be certain. So that's probably where I'd start.  Go to the court and askthe clerk how to get an audio recording of that hearing.

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3 hours ago, Harry Seaward said:

You're in a pickle.  You only have 14 days to appeal a denied MTC arbitration.  If you try to renew the motion or ask for it to be reconsidered, the court could deny your request and by that time, your 14 days to appeal the denied  MTC will have expired, you likely can't appeal the 'reconsideration' ruling until the conclusion of the trial.

I'll see what others think, but I believe your best shot here is to appeal the denied  MTC. The only proper grounds for denying that motion is if the court finds there is no valid agreement. If that issue was never raised, it's very likely not the reason for the denial.  While a court can deny your motion as a sanction for your failure to appear, I'm guessing the appellate court would be looking for that reasoning in the record, and I'll bet it's not there. You would have to get a copy of the recording of the hearing you missed to be certain. So that's probably where I'd start.  Go to the court and askthe clerk how to get an audio recording of that hearing.

 

5 hours ago, Harry Seaward said:

Did plaintiff show up to the MTC hearing? 

If you mean the Oral hearing, Yes.  It was the pre-trial hearing prior that which the  Plaintiff didnt appear.  Also, the Plaintiff has not to my knowledge denied the comtract exist. I can upload their Opposition to you and also the court filing history doc that shows all the actions to date? 

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11 hours ago, Harry Seaward said:

Get a copy of the audio from the MTC hearing.  The one you weren't present for.  You need that ASAP, because you only have 14 days to appeal the denied MTC.

@BV80 @Xerxes @Goody_Ouchless Anything I'm missing here?

I can't think of anything else, Harry.  Looks like you've got it covered.

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