stefeni074

LVNV Motion to Vacate Courts Order of Dismissal AZ

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Does any one have much experience on the reply for a Motion to Vacate the Courts Order of Dismissal.  I had not been served so the court ordered a dismissal. LVNV filed a motion to vacate that order, which the court granted on 12/30/16.  The motion was mailed on 12/23/16 and I received it in the mail on 12/27/16. Do I still have 10 days from which I received the notice or is it 10 from when it was mailed or filed.  From the holidays and my time frame I am coming up with to file a response by 1/6/17.  This is "I think" putting the case to the beginning to which I should have 20 days to file an answer? Should I file a motion to dismiss the case on the grounds that it was not served in the time given.  I have uploaded the redacted motion.  LVNV refiled this case after I had responded to have a dismissal or to go to arbitration.  They did not answer that motion to arbitrate and the case was dismissed.  A new lawfirm picked up the case and refiled but had not served me, so this is where it is at for the moment.  Any ideas on how to move forward will be appreciated.

LVNV Redacted Motion to Vacate Order of Dismissal.pdf

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I'd try to get some exact dates. It's suspicious that they claim their "alternate service" motion was granted "around" October 10, and the court dismissed the case "on or around" October 11. Either way, you should have the full 10 days to respond - odd that the court granted their motion before that. In any case, it sounds like arbitration worked before - it should work again.

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...shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

I guess one question is whether the granting of "Alternative Service" came with an extension, and whether Alternative Service was made within that period. Worst case for plaintiff is that they simply re-file. 

My first thought would be to call new law firm and explain that you disposed of this case once already, through Arbitration, and will do so again. They may not care, though, since they are just working through a bank-of-hours supplied in their contract with Midland. How much is the debt and when does SOL expire?

 

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So here's what happened.  Plaintiff was unsuccessful in serving  you after multiple attempts (so they say) and at some unspecified date, filed a motion for alternative service.  This motion was granted on Oct 10.  The next day, the court dismissed the lawsuit for failure to complete service .  There are two problems here.  The first one is obvious.  The court dismissed Plaintiff's claim the day after it granted their motion for alternative service.  The second issue is that a plaintiff has 120 days to serve a defendant.  They filed the case on July 13.  120 days from then would have been Nov 10.  The court screwed up two different ways and they had no other choice but to vacate the dismissal.  Strange that the attorney didn't bring up the 120 days issue in their Motion to Vacate.  Perhaps even they didn't realize 120 days hadn't passed.

As far as what you do now, consider yourself served, like two months ago, and get your notice of intent to arbitrate off to their lawyer immediately and also immediately file your MTC with the court.  Your 20 days to respond has long since passed and now that the case has been re-opened, you're about to lose by default.

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This court has had many problems.. it is frustrating.  But from here, I would file a MTD/ or Alt MTC instead of an Answer.  A MTD is the only thing that can be filed other than an answer.  If I file an Answer that would move litigation on to the next steps and may be cause to refuse an arbitration?  

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I found it, @Harry Seaward is correct as he usually is.  So I mail my letter to Atty Electing Arbitration. Tomorrow I will file my MTD / Compel.

Rule  113 i. Dismissal because of lack of service; service on some but not all defendants. After at least twenty (20) days notice to plaintiff,
the court may dismiss a complaint as to any defendant who has not been served with the summons and complaint within one hundred
twenty (120) days after the filing date of the complaint. Before the dismissal date, if the plaintiff shows good reasons why a defendant
has not been served, the court may extend the time for service. When some but not all of the defendants in a lawsuit have been timely
served, the court may dismiss from the lawsuit the defendants who have not been served, and allow the plaintiff to proceed against
the defendants who have been served. [ARCP 4(i), 5(b)]

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