HellGato

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

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Ok, so you want to find out if there is a transcript of that phone hearing.  They might charge you to put it on a CD or whatever but that really needs to be included in the record on appeal.

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Just had this thought and wanted to get it down before I forget.  At the end of the appeal memorandum you file with the Superior Court, be sure to ask for an award of your costs on appeal.  This means if you win, Midland will have to reimburse you for the fees you pay to appeal.

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On 5/26/2017 at 4:17 PM, HellGato said:

. that private arbitration is something the Court does not get involved with and something we can do with the bank.

Well, he was right.  Per your card agreement, the court lacked jurisdiction to hear Midland's lawsuit and should have stayed the lawsuit and ordered Midland to arbitrate.  He seems to know nothing about how it works.

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14 minutes ago, debtzapper said:

 He seems to know nothing about how it works.

The fact that he thinks the bank still has anything to do with it.....smh

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On 5/27/2017 at 4:15 PM, Harry Seaward said:

Just had this thought and wanted to get it down before I forget.  At the end of the appeal memorandum you file with the Superior Court, be sure to ask for an award of your costs on appeal.  This means if you win, Midland will have to reimburse you for the fees you pay to appeal.

I filed it too quickly and forgot this part of it.

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Update on my Appeal  the plaintiffs lawyer tried to appeal my appeal and block it on statuary grounds which made no sense to me but he was saying I would have to lose the entire case in order to file a appeal, but the appeal of the appeal come in 30 days after I appealed.. 

 

I got a one page civil motion and order this week apparently filed by the attorney and ruled on  and signed by the justice of the peace granting him a Motion in two parts what we have is general Court form with check boxes

with two check marks

top one has Plaintiffs  Attorney and has / "appellee" written in handwriting and one box for Dismissal checked and other box checked for Other / "30 day to file appeal brief" also written in handwriting 

Apparently looking at the timeline on the online court portal thingy the timeline has my last Motion being the last thing approved.

I assume is my MTC but I have not gotten any other documentation on this as yet.

I guess I on the winning in part but they are all pissed I think looking for a way to overturn it by a appeal of a appeal ruling.

I will wait for more information and wondering if I need to go ahead and file with Jams still open to any suggestions 

You guys rock by the way!

Meanwhile I have second lawsuit one on the pot pending so to say to proceed the exact same way.

I will update or start a new thread for that one.

 

 

 

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On 7/24/2017 at 1:39 PM, Harry Seaward said:

So wait a minute.  You won the appeal.  And Midland tried to appeal that ruling?  Who did they file their appeal with?

Harry that  is exactly what is confusing about the whole thing to me

how does the other lawyer know anything of the appeal and have time to do anything like a motion for dismissal and appeal when I have not even got notice of anything yet of the appeal I sent..  

What does it even mean? Is the case dismissed or is it on hold pending his appeal brief?

the online case timeline lookup shows only my last motion as D1 was approved..

 Nothing in the mail still other than that order

I think I may just file with Jams now..

they may be trying to allege is a ploy and I never planned to file JAMS at all and the appeal is to point out I did nothing during that 30 days.

I may go up there tomorrow and ask about the order..

 I have more Motions to file on another case anyways

any suggestions at this point?

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This is what the court shows online

I attached the order and motion with little redaction so you can take a look

7/14/2017 MOTION - GRANTED D 1
6/26/2017 MOTION FILED P 1
5/26/2017 NOTICE - APPEAL D 1
5/26/2017 APPELLANT MEMORANDUM FILED D 1
5/26/2017 APPEAL FEE IMPOSED D 1
5/26/2017 FEE FOR COPY OF TAPE IMPOSED D 1
5/26/2017 Receipt# P00013644 generated for the amount of $ 50.00 D 1
5/22/2017 MOTION - DENIED D 1
4/17/2017 CIVIL HEARING SCHEDULED ON 05/17/2017 AT 10:00AM IN COURT RO P 1

 

motion and order.pdf

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The motion granted on 7/14/2017 appears to be the Plaintiff's Motion for an extension of time to file a Responsive Memorandum ("appeal brief" in the order) to your Appellant Memorandum.

In smaller words, the Plaintiff filed for, and was granted, an extension to file a response to your appeal.  This is done prior to the appeal record being sent to the appeals court.

Should the Plaintiff misrepresent something in their Responsive Memorandum, there is no absolute right to file a Reply Memorandum to the Plaintiff's Responsive Memorandum.  In order to file a Reply Memorandum, a procedural motion must first be filed with the appeals court asking permission and making a showing why it is warranted.

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7 hours ago, HellGato said:

how does the other lawyer know anything of the appeal and have time to do anything like a motion for dismissal and appeal when I have not even got notice of anything yet of the appeal I sent..  

You are supposed to send to the plaintiff's lawyer a copy of everything you file with the court.  Did you do that?  If so, that's how they know you filed an appeal.

And the flip side of that, they are supposed to send you a copy of everything they file.  Did you get a copy of the motion they filed?

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2 hours ago, Xerxes said:

The motion granted on 7/14/2017 appears to be the Plaintiff's Motion for an extension of time to file a Responsive Memorandum ("appeal brief" in the order) to your Appellant Memorandum.

In smaller words, the Plaintiff filed for, and was granted, an extension to file a response to your appeal.  This is done prior to the appeal record being sent to the appeals court.

Should the Plaintiff misrepresent something in their Responsive Memorandum, there is no absolute right to file a Reply Memorandum to the Plaintiff's Responsive Memorandum.  In order to file a Reply Memorandum, a procedural motion must first be filed with the appeals court asking permission and making a showing why it is warranted.

Yes I do send copies of everything I do to the lawyer 

On june 23rd he drafted a "Appellee's Motion to Dismiss Appeal" here is a redacted copy of it 

so this instance of a Motion being granted is actually the plaintiff now calling itself the appellee or defendant ..  not P1 like before but assuming my D1 on the Courts timeline.

That's what confused me but apparently they are trying to find a way around this appeal. and that timeline of D1 Motion filed confused me..

 

motion to dismiss appeal.pdf

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13 minutes ago, HellGato said:

Yes I do send copies of everything I do to the lawyer 

On june 23rd he drafted a "Appellee's Motion to Dismiss Appeal" here is a redacted copy of it 

so this instance of a Motion being granted is actually the plaintiff now calling itself the appellee or defendant ..  not P1 like before but assuming my D1 on the Courts timeline.

That's what confused me but apparently they are trying to find a way around this appeal. and that timeline of D1 Motion filed confused me..

 

motion to dismiss appeal.pdf

Under which rule or statute was your appeal based?

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18 minutes ago, BV80 said:

Under which rule or statute was your appeal based?

Its based on current appeals rulings regarding arbitration contract language

ARS § 12-1501 and ARS § 12-1502

and 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

I posted the entire thing earlier in this thread on page one I think around posted may 25th

I used this as a roadmap Harry found

http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf

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34 minutes ago, HellGato said:

On june 23rd he drafted a "Appellee's Motion to Dismiss Appeal" here is a redacted copy of it ...

apparently they are trying to find a way around this appeal. ...

They argued in the alternative that if their motion to dismiss your appeal was denied, that "Appellee requests an extension to file is Appeal Brief" 

Since the court's order is for the extension, it is probably pretty safe to assume that their motion to dismiss your appeal was denied (or at least not granted).

They are wrong about A.R.S. § 12-2101.01(A)(1).  It does provide that an appeal may be taken from an order denying a motion to compel arbitration, so long as the order denying the MTC is formally entered as a signed written order.

It seems you are past that issue now. It is probably moot or not worth bringing up because it would give the Justice Court more chances to make more mistakes.

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1 minute ago, Xerxes said:

They argued in the alternative that if their motion to dismiss your appeal was denied, that "Appellee requests an extension to file is Appeal Brief" 

Since the court's order is for the extension, it is probably pretty safe to assume that their motion to dismiss your appeal was denied (or at least not granted).

They are wrong about A.R.S. § 12-2101.01(A)(1).  It does provide that an appeal may be taken from an order denying a motion to compel arbitration, so long as the order denying the MTC is formally entered as a signed written order.

It seems you are past that issue now. It is probably moot or not worth bringing up because it would give the Justice Court more chances to make more mistakes.

yes its all starting to make sense now some

 

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1 hour ago, HellGato said:

Its based on current appeals rulings regarding arbitration contract language

ARS § 12-1501 and ARS § 12-1502

and 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

I posted the entire thing earlier in this thread on page one I think around posted may 25th

I used this as a roadmap Harry found

http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf

Did you request an interlocutory appeal?

Was your motion made under 12-1501  or 12-1501.01.   (Note the .01).

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12 minutes ago, BV80 said:
 

Did you request an interlocutory appeal?

Was your motion made under 12-1501  or 12-1501.01.   (Note the .01).

yes to the best of my understanding it is n interlocutory appeal no actual trial has started I was appealing immediately after denial of my MTC I based my appeal off the 12-1501 like was in the other appeal decision link I posted. 

I did not know of another way in this one like the .01 

The one I used as authority giving me ability to appeal was A.R.S. § 12-1502 I thought.

 

awe is  Recovery of attorney fees I did not say that in my memorandum but I will try a motion on it if I prevail.

 

 

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18 minutes ago, HellGato said:

yes to the best of my understanding it is n interlocutory appeal no actual trial has started I was appealing immediately after denial of my MTC I based my appeal off the 12-1501 like was in the other appeal decision link I posted. 

I did not know of another way in this one like the .01 

The one I used as authority giving me ability to appeal was A.R.S. § 12-1502 I thought.

 

awe is  Recovery of attorney fees I did not say that in my memorandum but I will try a motion on it if I prevail.

 

 

I meant to state 12-2101.01 (not 12-1501.01)

This is from U.S. Insulation v. Hilro:

The denial of a motion to compel arbitration is substantively appealable. A.R.S. § 12-2101.01(A)(1).

The attorney is arguing that you based your appeal on 12-2101.   He's saying it was not based upon 12-2101.01.

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7 minutes ago, BV80 said:
 

I meant to state 12-2101.01 (not 12-1501.01)

This is from U.S. Insulation v. Hilro:

The denial of a motion to compel arbitration is substantively appealable. A.R.S. § 12-2101.01(A)(1).

The attorney is arguing that you based your appeal on 12-2101.   He's saying it was not based upon 12-2101.01.

Interesting I of course did not base it there at all since my research material did not cite it from what I seen but I will look into it Thank you for the cite.

I am thinking I may go ahead now and file my JAMS now 

any suggestions on that?

 

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1 hour ago, BV80 said:

The attorney is arguing that you based your appeal on 12-2101.   He's saying it was not based upon 12-2101.01.

The attorney is not quite exactly arguing that.  The relevant portions of the argument;

The ... Court has not entered an Order which the Appellant can appeal.
A.R.S. § 12-2101 contains a list of appealable judgments and orders.
An order denying Defendant's Motion to Compel Private Arbitration is not contained with the list provided in the statute.

There is no claim that the opposition previously made a citation to A.R.S. § 12-2101.

The statement in the motion is consistent with a first reference to A.R.S. § 12-2101.

OP seems to indicate that no reference was made to either A.R.S. § 12-2101 or A.R.S. § 12-2101.01(A)(1)  in his prior filings.

Although, a reference to the case U.S. Insulation, Inc. v. Hilro Const. Co.  may be an indirect citation to A.R.S. § 12-2101.01(A)(1).  If the case was mentioned at least.

I just noticed however the header on the motion;

Motion for Procedural Order
(Refer to Superior Court for Ruling)

Plaintiff/Appellee may have intended that this motion be considered by the appeals court (Superior Court).  Even though it was filed with the Justice Court.  I'm not sure about this.

If so, it may be worth filing a response even though it would be late. (The 10-day preamble notice is not in the motion, which could be cause to file a late response).  Since the Justice Court may have erroneously ruled on this motion, do not rely on anything that the Justice Court has done in respect to this motion.

The appeals court (Superior Court) should know about  A.R.S. § 12-2101.01(A)(1) and use it anyway, because it is the correct statute.  But the preference is to have it in the record before the appeal is considered.

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They have zero grounds to argue for "denial" of appeal to the Justice Court.  Mostly because you filled a notice of appeal, not a motion for appeal. 

 If you respond you're conceding the JC still has jurisdiction.  I wouldn't do anything at all at this point. I'm certain the case is going to Superior Court now, and if it doesn't you can appeal everything when the Justice Court case is finished. 

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My concern is that the motion filed by the Plaintiff/Appellee on 06/26/2017 has the style and caption "Motion for Procedural Order (Refer to Superior Court for Ruling)".

This seems to be a request to refer this procedural motion to the Superior Court for a ruling.

Yet, the Justice Court ruled on the motion on 07/14/2017.

If this motion is still sent to the Superior Court for a ruling, it can (as far as I can tell) serve as a procedural motion to dismiss the appeal.

And if Defendant/Appellant does not respond to the procedural motion, then there is risk of this;

Defendant did not respond to Plaintiff’s procedural motion and the 14 calendar days provided for the time to respond to the procedural motion have ended. Generally, whenever a motion is filed, the party opposing the motion must file a written response. Choisser v. State ex rel. Herman, 12 Ariz. App. 259, 260, 469 P.2d 493, 494 (1970). If the party opposing the motion does not respond in writing, it is within the trial court's discretion to dispose of the motion summarily. Choisser, 12 Ariz. App. at 260, 469 P.2d at 494.

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1 hour ago, Harry Seaward said:

On second thought, if Justice Court doesn't honor your notice of appeal, I would file a special action appeal.

Based on the docket posted, the Justice Court accepted the notice of appeal along with the Appellant Memorandum (both filed the same day).

Not only that, further evidence that the JC accepted the appeal is that they granted Plaintiff's motion for an extension of time to file Responsive Memorandum, even though that motion was directed to the Superior Court (motion has the style and caption "Motion for Procedural Order (Refer to Superior Court for Ruling)".

So, Justice Court seems to have made no obstacle to the appeal process.

The potential problem is when the lower case record lands in Superior Court along with the (unopposed) procedural motion to dismiss directed to the Superior Court.

1 hour ago, Harry Seaward said:

I'm certain the case is going to Superior Court now, and if it doesn't you can appeal everything when the Justice Court case is finished. 

I agree it is going to Superior Court now, the question is if the procedural motion (to dismiss) that comes with it will have any effect once it gets to Superior Court.

Going through the entire case in Justice Court, including the judgment and perhaps trial that comes with it, is something that most people would want to avoid. Especially when the law provides for an interlocutory appeal to avoid all that.

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