HellGato

Arizona Suit by Midland Funding can I do a MTD with alternative Motion to Compel Arbritration

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Filed my copies of the Motion to Withdraw Discovery today and sent the Lawyer a copy in the mail

sent my letter Notice of Arbitration to the lawyer and had it certified and return with card back

 have the AZ form for proof of delivery to attach to that card when it gets back.. 

tomorrow is to the bank for notary work on the MTC and Affidavit for the Terms and Conditions 

as soon as I get the notice of arbitration delivery confirm card back I will go file the MTC and see what happens then 

I bet the lawyer is gonna be teed off I have not met him yet 

I found couple very very interesting rulings against Midland and their Lawyer

http://www.courtminutes.maricopa.gov/docs/Lower Court/012014/m6113189.pdf

http://www.courtminutes.maricopa.gov/docs/Lower Court/022016/m7204120.pdf

Definitely getting into battlemode :D

 

 

 

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I went to my bank for my notary of the 3 MTC's and Notarize the affidavit for the Terms and Conditions  the girl was leery of notarizing them since it was a court thingy, she had to ask her supervisor first ,

I told her is not our bank at all LOL this was a good thing I told her

anyway got them done and ready for the second I get the card back from the notice of arbitration letter i register mailed to their lawyer.

Win or lose it feels better doing something with a direction and getting some positive vibes from it.

Thanks I will keep a update on the proceedings..

 

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I went to my bank for my notary of the 3 MTC's and Notarize the affidavit for the Terms and Conditions  the girl was leery of notarizing them since it was a court thingy, she had to ask her supervisor first ,

I've come across before.  My wife is a notary and she told me that they are probably inexperienced and concerned that you are asking *them* to certify the truth of the affidavit contents, which obviously they cannot do.  There are different types of affidavits, and what you want is a "jurat", which is where the notary swears you in and asks you under oath to affirm that the contents of the affidavit are true.

But anyway, glad you got it done.

Hopefully things in court run smoothly for you from here on out!

On 3/15/2017 at 10:06 PM, HellGato said:

In the first case, the fatal blow for Midland was this:

Quote

           A review of her affidavit demonstrates the gaps it left:
(1) Ms. Gohman did not state Chase Bank’s records were incorporated into Plaintiff’s records and relied on in Plaintiff’s day to day operations; (2) she did not state she was familiar with the day to day operations of Plaintiff’s business; (3) she did not attest she was familiar with the procedures Chase Bank used to create the records; and, (4) instead, she limited her affidavit to her familiarity with the business practices of a third entity—MCM—and asserted she reviewed MCM’s business records and MCM’s records showed Defendants owed a balance.

They have since tightened up their game and no longer make these same mistakes.
The second opinion actually hurts consumers being sued here in AZ.  The court is essentially saying the CFPB order is meaningless with regard to questioning the reliability of the records.

But if you want a good case that is 100% on-point for the direction you're taking your case, have a read here:
http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf

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2 hours ago, Harry Seaward said:

I've come across before.  My wife is a notary and she told me that they are probably inexperienced and concerned that you are asking *them* to certify the truth of the affidavit contents, which obviously they cannot do.  There are different types of affidavits, and what you want is a "jurat", which is where the notary swears you in and asks you under oath to affirm that the contents of the affidavit are true.

But anyway, glad you got it done.

Hopefully things in court run smoothly for you from here on out!

In the first case, the fatal blow for Midland was this:

They have since tightened up their game and no longer make these same mistakes.
The second opinion actually hurts consumers being sued here in AZ.  The court is essentially saying the CFPB order is meaningless with regard to questioning the reliability of the records.

But if you want a good case that is 100% on-point for the direction you're taking your case, have a read here:
http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf

that is a spot on and thanks for the link to it!

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I got the card back and went this morning and filed the 3 MTC and sent the lawyer his copy certified mail this evening.. I got everything filled out and ready to file with JAMS so just waiting to see were the cards fall now .. 

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Little update as to my pending case,

the plaintiffs attorney filed a opposition to motion to compel Private arbitration and yes it lists the same kind of arguments Harry put forth

the motion participation, so I am so glad I put the motion to withdraw that discovery motion and he puts forth that I have not yet filed to JAMS as yet and paid the filing fee, which I plan to do.  I was waiting for the leave by the Court to do it but will do it right before a hearing. 

 He says is a cost thing to arbitrate and complaining of filing fees complaining of thousands of dollars and such.

he cite two cases one State ex rel Goddard v. R. J. Reynolds Tobacco Company, 206 Ariz. 117, 75 P. 3d 1075 (App. 2003) were cost of arbitration is more than the cost of the cost grossly exceeds and Cordova v. City of Tucson, 489 P. 2d 727, 15 Ariz. App. 469 (Ariz. App., 1971) Judicial intervention as a special action to avoid the serious economic waste of a long drawn out trial. 

I think these two cases are little feeble and old and stretching it some since neither one of these cases involve zombie debt and JBCs.

The Court chose to respond to mine and we are scheduled for a telephone hearing in the middle of the month. 

I plan to actually engage in private arbitrate to the end if they choose to go down that road and will pay my filing fee according to the contract since is limited by the contract to $125 and is half off a couple days right before the telephone hearing and have my duck in a row. I was kinda waiting for the Courts leave to proceed, as I suspect they will make sure I file JAMS and not just say I will and  that's my plan.

Suggestions are good and thanks

I have couple more zombie ones and I will be posting threads on them as we proceed.

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2 hours ago, HellGato said:

he cite two cases one State ex rel Goddard v. R. J. Reynolds Tobacco Company, 206 Ariz. 117, 75 P. 3d 1075 (App. 2003) were cost of arbitration is more than the cost of the cost grossly exceeds and Cordova v. City of Tucson, 489 P. 2d 727, 15 Ariz. App. 469 (Ariz. App., 1971) Judicial intervention as a special action to avoid the serious economic waste of a long drawn out trial. 

Unless I'm missing something huge,  neither of these cases have anything at all to do with arbitration in any agreement. In any event, plaintiff's predecessor drafted the agreement so any ambiguity in terms have to fall in your favor.

As you know,  they are grasping at straws. The reason they haven't put up one single on-point case is because there are none, and any rulings that address arbitration provisions in agreements always try to find in favor of arbitration.

I'm on the road but when I get back later this evening I'll dig around for some local caselaw you can take with you to your hearing. 

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Well I finished this telephone hearing the judge said he was going to go over the actual motions and review first but he is inclined to rule against my motion to compel arbitration. 

I told him I was ready to proceed with arbitration but waiting the leave of the court to proceed. 

The lawyer for the plaintiff said I have not sought to do any arbitration  even up to this date and we need not have to arbitrate that the money to pay the arbitration would be better put to use by paying my debt, but left out the fact I certified a election to arbitrate  letter to him. this is hindsight however and I am afraid I did poorly but did bring up the case law in a general manner. I of course have not done that before and did not quite know how to present my case well. The Lawyer was more general than me however.

I asked the judge if I can still proceed with the Arbitration with JAMS and he said he cannot give legal advice and I need to consult with a lawyer.

I have the Jams thing ready and will simply get a MO for my part and send it in.

I need to show I was serious about arbitrating and if need be appeal it to higher court. 

I have not give up yet so I keep on with the fight.

 

 

 

 

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There is nothing anywhere that requires a defendant to initiate arbitration before the court can grant a MTC.  So at this time I would not pay anything to JAMS and would instead let the court make it's ruling.  If it denies then MTC, I would file an immediate appeal.

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18 hours ago, Harry Seaward said:
 

There is nothing anywhere that requires a defendant to initiate arbitration before the court can grant a MTC.  So at this time I would not pay anything to JAMS and would instead let the court make it's ruling.  If it denies then MTC, I would file an immediate appeal.

Will do so I wait and get the denial over the MTC then I immediately appeal to higher court or appeals court or wait till this entire suit is over and appeal?

Thanks for the advice 

Here is another interesting link I think has federal cites about appealing arbitration

 

http://www.primerus.com/business-law-articles/immediate-right-of-appeal-under-federal-arbitration-act-9-u-s-c-§-1-et-seq-of-orders-denying-a-motion-to-compel-arbitration-12042013.htm

 

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59 minutes ago, HellGato said:

Will do so I wait and get the denial over the MTC then I immediately appeal to higher court or appeals court or wait till this entire suit is over and appeal?

Thanks for the advice 

Here is another interesting link I think has federal cites about appealing arbitration

 

http://www.primerus.com/business-law-articles/immediate-right-of-appeal-under-federal-arbitration-act-9-u-s-c-§-1-et-seq-of-orders-denying-a-motion-to-compel-arbitration-12042013.htm

That's a pretty interesting analysis of the FAA. If you notice,  it talked about the case where the party had their MTC denied but waited until the end of the trial to appeal and the appellate court found they had waived their right to arbitration by not immediately appealing. 

I would say this analysis would expressly apply to any case where the arbitration agreement cites the FAA.

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19 hours ago, Harry Seaward said:

That's a pretty interesting analysis of the FAA. If you notice,  it talked about the case where the party had their MTC denied but waited until the end of the trial to appeal and the appellate court found they had waived their right to arbitration by not immediately appealing. 

I would say this analysis would expressly apply to any case where the arbitration agreement cites the FAA.

the terms and conditions of this case does say applicable law is FAA as in this link so this one has nice cites I can use in any appeal for denying the MTC and I must I think as I seen you say in another thread do this within 14 days of the decision... so I do a notice of appeal of this denial within 14 days of the judges order and not wait under any circumstances to file it .. any links or suggestions where I find a format for appealing a judges denial in Arizona?

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2 hours ago, HellGato said:

the terms and conditions of this case does say applicable law is FAA as in this link so this one has nice cites I can use in any appeal for denying the MTC and I must I think as I seen you say in another thread do this within 14 days of the decision... so I do a notice of appeal of this denial within 14 days of the judges order and not wait under any circumstances to file it .. any links or suggestions where I find a format for appealing a judges denial in Arizona?

I wouldn't wait. My appeal thread has a bunch of links to info. If you follow the link in my signage you can find my appeal thread linked from the first post of my main thread. 

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19 hours ago, Harry Seaward said:

I wouldn't wait. My appeal thread has a bunch of links to info. If you follow the link in my signage you can find my appeal thread linked from the first post of my main thread. 

I was trying to read you appeal work from your post 26 link but getting a 

Sorry, there is a problem

The page you are trying to access is not available for your account.

Error code: 2C171/1

Contact Us

 

 

Bahhh

I check the other links..

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On 5/1/2017 at 6:15 PM, HellGato said:

e says is a cost thing to arbitrate and complaining of filing fees complaining of thousands of dollars and such.

he cite two cases one S, 206 Ariz. 117, 75 P. 3d 1075 (App. 2003) were cost of arbitration is more than the cost of the cost grossly exceeds 

 

"State ex rel Goddard v. R. J. Reynolds Tobacco Company"   There is not a word in that  case about arbitration whatsoever.

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22 hours ago, HellGato said:

I was trying to read you appeal work from your post 26 link but getting a 

Sorry, there is a problem

The page you are trying to access is not available for your account.

Error code: 2C171/1

Contact Us

 

 

Bahhh

I check the other links..

Here is a direct link to my appeal thread.
http://www.creditinfocenter.com/community/topic/323330-arizona-lost-to-cavalry-on-msj-also-lost-on-appeal/

 

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Ok I got my denial for my MTC today on the court webportal no paperwork as yet so working up the appeal

 

here is the work fitting it on the courts form for appeals I may of course make some changes is a work in progress let me know what you think?

 

STATEMENT OF THE CASE (Status of the Case):

 

The basis of this appeal is the issue of contract interpretation.

 

The Plaintiff apparently claims or expects that the portion of the contract regarding terms and conditions of the debt owed is to be followed to the letter but the clear election for arbitration clause in the same contract should be ignored.

 

The terms and conditions were presented to the court and not contested by either side and has a clear and concise arbitration clause

and states if either side chooses arbitration then the contract in clear language states that:

 

"if either party chooses to arbitrate a claim, neither party will have the right to litigate that claim in court or to have a jury trial on

that claim, or to participate in a class action or representative action with respect to such claim."

 

"The laws of the United States of America, including the Federal Arbitration Act, 9 U.S.C. Sections 1-16 and the laws of the State of

Utah apply to and govern this agreement and your use of your account."

 

STATEMENT OF FACTS:

On August 23, 2016 Plaintiff filed complaint alleging Defendant failed to pay his credit card debt based on a credit card agreement or contract Defendant with  WebBank Dell Financial Services LLC Where Plaintiff, a debt collector claims to be successor-in-interest of the Debt.

 

Defendant denied in general Plaintiff's claims in the complaint and clearly chose to the option to arbitrate and indicated this in a Notice of Arbitration Election and sent to the Plaintiff Certified Mail and delivered on (edited date) and filed a Motion to Compel Private Contractual Arbitration and Dismiss or in the Alternative Stay Proceeding Pending Arbitration on (edited date).

 

Defendant chose JAMS for Arbitration. Defendant is entitled if requesting and arbitration is required by the terms and conditions of the contract of said agreement.  Defendant has prepared JAMS Demand and asked leave of the Court to file it on (edited date).

 

At no time has the Defendant ever waived his right or desire to Arbitrate. The Court denied his Motion to Compel Arbitration.

 

 

STATEMENT OF ISSUES PRESENTED FOR APPEAL:

 

A credit card agreement is a contract. As such the agreement must be construed according to its terms. McDowell Mountain Ranch Community Association Inc. v. Simons, 216 Ariz. 266, 165, 165 P.3rd 667 ¶ 14 (Ct, App. 2007).

 

 A.R.S. § 12-1501 authorizes written agreements to arbitrate and states that a contract provision re arbitration is both enforceable and irrevocable. 

 

The arbitration provision in a credit card agreement is mandatory if a party wishes to elect arbitration. Cortez Investment Co LLC v. David McFarland and Jessica McFarland, LC2016-0002210001 DT, The Arizona Supreme Court noted that and the public policy of Arizona favors arbitration as a means of of disposing of controversy.  Jeanes v. Arrow Insurance Company 16 Ariz. App. 589, 494 P.2d 1334 (1972) and Clarke v. ASARCO Inc., 123 Ariz. 587, 589, 601 P.2d. 587, 589 (1979)

The Courts have found that the general principal of statutory construction are words that are permissive and those that have a clear mandatory provision. State v. Lewis, 224 Ariz. 512, 233 P.3d.625,¶ 17 (Ct.App.2010) aff'd, 226 Ariz. 124 P3d 561 (2011)

 

REASONS WHY THE LOWER COURT RULED INCORRECTLY (include statutes or authority):

The Arizona Court of Appeals has stated " 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 Steel Workers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L.Ed.2d.(1960); Robert Lawrence Co. Devonshire Fabrics, Inc., 271 F2d. 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 and Rubber Co. v. United Rubber Workers of America, Local Union No. 100, AFL-CIO, 168 Cal.App.2d. 444, 335 p.2d 990 (1959); Bewicck 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$$'n, 12 Ariz App. 13, 467 P.2d. 88, 91 (1970)

 

CONCLUSION:

Defendant contends that the Court erred when it denied Defendants Motion to Compel Arbitration and the denial of a Motion to Compel Arbitration is a appealable order. U.S. Insulation, Inc. v. Hilro Const. Co., 146 Ariz. 250, 253, 705 P.2d 490, 493 (Ct. App. 1985). and A.R.S. § 12-1502

Plaintiff alleges it is a assignee for the credit card contract. As a Assignee, Plaintiff has no more rights than its principal would have no more rights than it's principal would have had and Defendants are able to assert any defenses against the assignee that Defendants could assert against the original creditor. Certified Collectors, Inc. v. Lesnick, 116 Ariz. 601, 602, 570 P.2d. 769, 770 (1977) and the assignee of such a debt "is not entitled to stand in a better position than that of its assignor"  see, Portfolio Recovery Assoc., LLC v King, 14 NY3d at 416. Allowing the Plaintiff to proceed with continued litigation when the Defendant has clearly chose to arbitrate is contrary to the clear mandatory language of the contract regarding a party electing arbitration and is detrimental to the Defendant and and believes it violates current State and Federal Law regarding private consumer arbitration.

 

end this is all the form will let me put in it is short but sweet and to the point.

 

suggestions? 

I want to get this in in a day or so before they rule on the motion for summary judgement i did not respond to.

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20 hours ago, HellGato said:

Cortez Investment Co LLC v. David McFarland and Jessica McFarland, LC2016-0002210001 DT

Remove this.  It's not legitimate case law.  You just cite all of the relevant cases that were cited in the McFarland case (which you already did).

What reason did the judge give for denying the MTC?

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50 minutes ago, Harry Seaward said:

Remove this.  It's not legitimate case law.  You just cite all of the relevant cases that were cited in the McFarland case (which you already did).

What reason did the judge give for denying the MTC?

excellent I will remove it ..

he said in the telephone hearing something of the sort that private arbitration is something the Court does not get involved with and something we can do with the bank.  he was going to go over the motions on both side but was inclined to deny  the MTC.. 

I got the order for denial in the mail last evening and it says nothing but denial.

I will file this this afternoon or tomorrow.

Thanks 

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Filed it and paid the costs, about 50 dollars, no bond really since is only appealing the Motion denial not a entire judgement.

The clerk said it looked good and well thought out.

 

Thanks for the help and I keep it updated as it develops 

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