HellGato

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

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12 minutes ago, Xerxes said:

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 a extension of time to file Responsive Memorandum, even though that motion was directed at 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 at the Superior Court.

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.

I can take a court form and put that on the form i have here also how would I ask for filing fees back if I prevail I could add that to this form too.

CV Response - Reply to Motion.update.6.2015.pdf

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2 hours ago, Xerxes said:

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.

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.

I gotcha. Because Plaintiff's arguments are incorrect I doubt the Superior Court would entertain Plaintiff's motion, even unopposed (I've seen Harris several times take it upon herself to make her own opposition where there was none otherwise), but now that I look at it the way you laid out, I agree that it's a good idea to at least get an opposition on the record. 

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23 hours ago, Harry Seaward said:

I gotcha. Because Plaintiff's arguments are incorrect I doubt the Superior Court would entertain Plaintiff's motion, even unopposed (I've seen Harris several times take it upon herself to make her own opposition where there was none otherwise), but now that I look at it the way you laid out, I agree that it's a good idea to at least get an opposition on the record. 

I was thinking of just putting this on a court form is supposed to be 5 days but I think is going to be in the record then no matter how the judge rules on it.

 

how does this sound 


Include Defendants / Appellant's response and opposition to Appellee's Motion to Dismiss Appeal (Refer to Superior
Court for Ruling) Granted by Justice Court on 7/14/17 Granting Motion for Dismissal and Extension of Time, and include it
in the record for Superior Court review.


Court denied Defendant/ Plaintiff's Motion to Compel Arbitration and Defendant / Appellant appealed pursuant to
established Federal and Arizona Statutes.
In addition to case law and Statute in Defendants / Appellant's Memorandum he would like to have entered in the record
that the Plaintiff / Appellee argues in his Motion that A.R.S. §12-2101 contains a list of appealable judgements and orders
and errs when alleging denial of private arbitration is not contained within the list provide in the Statue.


Defendant points out that the denial of a motion to compel arbitration is substantively appealable. A.R.S. §12-2101.001(A)
(1). see US Insulation, Inc. v. Hilro Const. Co., 705 P. 2d 490 - Ariz: Court of Appeals, 1st Div., Dept. A 1985.

 

also how would I ask for my court costs and could I put it here too?

Defendant also request award of any  court costs or fees sofar incurred ect ect ect

Thanks

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On 7/27/2017 at 6:16 PM, HellGato said:

I was thinking of just putting this on a court form is supposed to be 5 days but I think is going to be in the record then no matter how the judge rules on it.

 

how does this sound 


Include Defendants / Appellant's response and opposition to Appellee's Motion to Dismiss Appeal (Refer to Superior
Court for Ruling) Granted by Justice Court on 7/14/17 Granting Motion for Dismissal and Extension of Time, and include it
in the record for Superior Court review.


Court denied Defendant/ Plaintiff's Motion to Compel Arbitration and Defendant / Appellant appealed pursuant to
established Federal and Arizona Statutes.
In addition to case law and Statute in Defendants / Appellant's Memorandum he would like to have entered in the record
that the Plaintiff / Appellee argues in his Motion that A.R.S. §12-2101 contains a list of appealable judgements and orders
and errs when alleging denial of private arbitration is not contained within the list provide in the Statue.


Defendant points out that the denial of a motion to compel arbitration is substantively appealable. A.R.S. §12-2101.001(A)
(1). see US Insulation, Inc. v. Hilro Const. Co., 705 P. 2d 490 - Ariz: Court of Appeals, 1st Div., Dept. A 1985.

 

also how would I ask for my court costs and could I put it here too?

Defendant also request award of any  court costs or fees sofar incurred ect ect ect

Thanks

Actually I think I use the same format as the lawyer and address it to the Superior Court 

Can I ask for my court costs in that one as well of only in justice court?

I am filing a second MTC on another case for 3k tomorrow and will pay half my arbitration fees with MOs  and file with JAMs tomorrow or day after on both of these cases. 

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On 7/27/2017 at 6:16 PM, HellGato said:

Court denied Defendant/ Plaintiff's Motion to Compel Arbitration and Defendant / Appellant appealed pursuant to
established Federal and Arizona Statutes.
In addition to case law and Statute in Defendants / Appellant's Memorandum he would like to have entered in the record
that the Plaintiff / Appellee argues in his Motion that A.R.S. §12-2101 contains a list of appealable judgements and orders
and errs when alleging denial of private arbitration is not contained within the list provide in the Statue.


Defendant points out that the denial of a motion to compel arbitration is substantively appealable. A.R.S. §12-2101.001(A)
(1). see US Insulation, Inc. v. Hilro Const. Co., 705 P. 2d 490 - Ariz: Court of Appeals, 1st Div., Dept. A 1985.

You're good with this.

On 7/27/2017 at 6:16 PM, HellGato said:

also how would I ask for my court costs and could I put it here too?

Your appeal costs are one lump sum.  You don't need to ask for them on each filing.  If your appeal is successful, you file a Statement of Costs on Appeal and the Superior Court will issue a judgment order against Midland, like this one (this one happens to be in Midland's favor, but yours would be in your favor if your appeal is successful):
http://www.courtminutes.maricopa.gov/docs/Lower Court/072017/m7936538.pdf

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9 hours ago, Harry Seaward said:

You're good with this.

Your appeal costs are one lump sum.  You don't need to ask for them on each filing.  If your appeal is successful, you file a Statement of Costs on Appeal and the Superior Court will issue a judgment order against Midland, like this one (this one happens to be in Midland's favor, but yours would be in your favor if your appeal is successful):
http://www.courtminutes.maricopa.gov/docs/Lower Court/072017/m7936538.pdf

awesome thanks I filed my second MTC and both JAMS Demands for Arbitration and paid for them today. I leaving nothing to chance.

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Update on my appeal to the superior court apparently they just followed the plaintiffs motion to dismiss my appeal due to not a final judgement they did not do any homework apparently and find that that the denial of a motion to compel arbitration is substantively appealable. A.R.S. §12-2101.001(A)(1). see US Insulation, Inc. v. Hilro Const. Co., 705 P. 2d 490 - Ariz: Court of Appeals, 1st Div., Dept. A 1985

 

they denied it on lack of a final judgement and that I did not respond to the plaintiffs motion to dismiss since I assumed they should know.. 

 

Here is what the ruling says:

This is an appeal of a order of the Apache Junction Justice Court denying a motion to dismiss foiled by the defendant. The motion alleges that the contract for the account at issue provides for mandatory arbitration at the election of any party. The creditor's response does not deny that the arbitration clause exists but clime that under the circumstances of this case it is waived under the terms of the contract or should not be honored by the court. After a hearing on the matter, the trial court denied the motion to dismiss and the defendant files a timely appeal.

The plaintiff has sought to dismiss the appeal, claiming that the order of the Justice Court is not a appealable order under ARS  12-2101. The defendant has not responded to the motion of the plaintiff. Appeals form Justice Court to the Superior Court are governed by ARS 22-261 which gives the  court jurisdiction to review any final judgement of a justice court. The authority for establishing procedures relating to appeals are authorized to be set by the Arizona Supreme Court. ARS 22-262. Rule 1, Superior Court Rules of Appellate Procedure-Civil defines a engry of judgement as a unsigned minute entry order of a Justice of the Peace denying a motion to dismiss is a final judgement under ARS 22-261. 

 

The order denying a motion to dismiss is not a final order of the court. If the plaintiff wins a final judgement, the defendant may appeal. This court lacks authority to decide the issue on direct appeal at this time.

IT IS HEREBY ORDERED dismissing eh defendants appeal and remanding this matter to the trial court for further proceedings.

 

So this is getting very expensive to defend does this mean if I lost this appeal at this time I have to repay all over again the costs I just paid to appeal when the court awards a judgement against me?  Will I have to repay the appeal costs again? Should I try to settle the Jams and two times paying a appeal i could have paid most the junk debt. LOL Thanks for any advise. 

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Sorry your appeal went down this way, but the Commissioner's ruling is correct. A MTD is not appealable until final judgment. 

This is an excellent example of why you should file a Motion to Compel Arbitration and not a Motion to Dismiss. Did you ever post your original Motion here? I just read through the thread again and didn't see it. I'm trying to figure out why the appellate court thought it was a Motion to Dismiss and not a Motion to Compel Arbitration. 

Also an excellent example of why you should always file a response when you have the opportunity.  You may have been able to convince the Superior Court that while your motion was titled "Dismiss", it was substantially a Motion to Compel Arbitration because you cited 12-1502. 

You still have the option to ask the Superior Court to reconsider its denial of your appeal. I would do this and point out that the title if the motion is secondary to the content, and the content and intent of your motion was clearly to ask the lower court to order your case into arbitration, and a denial of such a motion us in fact immediately appealable. 

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On 1/20/2018 at 8:22 AM, HellGato said:

So this is getting very expensive to defend does this mean if I lost this appeal at this time I have to repay all over again the costs I just paid to appeal when the court awards a judgement against me?  Will I have to repay the appeal costs again? Should I try to settle the Jams and two times paying a appeal i could have paid most the junk debt. LOL Thanks for any advise. 

Technically, yes.  But in your appeal, I would ask for my costs and if granted you should get those awarded.

I would file a motion to reconsider as @Harry Seaward suggests

20 hours ago, Harry Seaward said:

This is an excellent example of why you should file a Motion to Compel Arbitration and not a Motion to Dismiss.


There are so many reasons why I very much dislike even including a dismissal request with an MTC.  The proper way should be to ask for a STAY of the case on your Motion to Compel Arbitration.

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On 5/26/2017 at 2:17 PM, HellGato said:

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.. 

This is typical - judge doesn't understand this area of law. Shame the appeal got botched as I believe we have seen others prevail on the simple grounds of quoting AZ statutes on right to arbitrate.

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2 hours ago, Goody_Ouchless said:

This is typical - judge doesn't understand this area of law. Shame the appeal got botched as I believe we have seen others prevail on the simple grounds of quoting AZ statutes on right to arbitrate.

This is a good lesson to always include great detail your motions and appeals to explain exactly what happened and how and why the judge should rule your way.  It may seem wrong to explain the law to the judge, but always assume he will have no idea about this area of law.

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On 1/20/2018 at 8:22 AM, HellGato said:

The plaintiff has sought to dismiss the appeal, claiming that the order of the Justice Court is not a appealable order under ARS  12-2101. The defendant has not responded to the motion of the plaintiff.

You didn't respond to the plaintiff's motion to dismiss?

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On 1/21/2018 at 8:22 AM, Harry Seaward said:

Sorry your appeal went down this way, but the Commissioner's ruling is correct. A MTD is not appealable until final judgment. 

This is an excellent example of why you should file a Motion to Compel Arbitration and not a Motion to Dismiss. Did you ever post your original Motion here? I just read through the thread again and didn't see it. I'm trying to figure out why the appellate court thought it was a Motion to Dismiss and not a Motion to Compel Arbitration. 

Also an excellent example of why you should always file a response when you have the opportunity.  You may have been able to convince the Superior Court that while your motion was titled "Dismiss", it was substantially a Motion to Compel Arbitration because you cited 12-1502. 

You still have the option to ask the Superior Court to reconsider its denial of your appeal. I would do this and point out that the title if the motion is secondary to the content, and the content and intent of your motion was clearly to ask the lower court to order your case into arbitration, and a denial of such a motion us in fact immediately appealable. 

I did submit a motion to compel arbitration 

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS
OR IN THE ALTERNATIVE STAY PROCEEDINGS PENDING ARBITRATION

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11 hours ago, BV80 said:

You didn't respond to the plaintiff's motion to dismiss?

No I was going to but I got confused who to send it to since the lawyer filed his in Justice Court I assumed they would know the law already

 

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1 minute ago, HellGato said:

I did submit a motion to compel arbitration 

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS
OR IN THE ALTERNATIVE STAY PROCEEDINGS PENDING ARBITRATION

I can try that if i have time to file it now

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2 hours ago, HellGato said:

I did submit a motion to compel arbitration 

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS
OR IN THE ALTERNATIVE STAY PROCEEDINGS PENDING ARBITRATION

Can you post the text of your motion? (Redact any personally identifying info.)

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Also the text of plaintiff's motion to dismiss the appeal.

Edit:

You have already posted the plaintiff's motion to dismiss the appeal, here.

It was a one pager, containing the following:

Quote

Appelle, through undersigned counsel, respectfully requests the Court to dismiss the Appellant's appeal in this matter for the reason the Apache Junction Justice Court has not entered an Order which 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 within the list provided in the statute.  The Justice Court has not entered a final judgment disposing of the case.  As such, Appellant's appeal should be dismissed.

In the event this Court denying Appelle's Motion to Dismiss, Appelle requests an extension to file is (sic) Appeal Brief.  Appelle requests the Court to allow thirty (30) days from the Court's ruling on this motion to file said brief.

The motion was filed in the Justice Court, with the following header on the motion;

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 (granting an extension) on 07/14/2017.  See prior post here.

My concern (at the time) was in allowing that motion to remain unopposed, that it would be granted.  See here.

There still seems to be an error of law (regarding the applicability of A.R.S. §12-2101), both in the plaintiff's motion and in the appeals court ruling.

Plaintiff's motion did not argue that an order denying a motion to dismiss was not an appealable order.

Instead, they argued "An Order denying Defendant's Motion to Compel Private Arbitration is not contained within the list provided in the statute" (A.R.S. §12-2101).

Although that exact motion caption may not be in the statute, precedent is clear that an order denying a motion to compel arbitration is appealable pursuant to the statute.

Another question is if the lower court ruled (even if improperly) on plaintiff's motion to dismiss the appeal - granting the extension (the alternative relief sought), can the motion be ruled on again by the appeals court?  The answer is probably yes but there is still court error nonetheless.

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Since this was kicked back to lower court, could OP file a new, perfect MTC (even written with appeal in mind) and see where that leads? It seems plaintiff's admission that an arbitration agreement is in place makes this a done deal, unless there is exception language in the arbitration provision. Do we have exact arb clause, in this case?

 

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2 hours ago, Goody_Ouchless said:

Since this was kicked back to lower court, could OP file a new, perfect MTC (even written with appeal in mind) and see where that leads? It seems plaintiff's admission that an arbitration agreement is in place makes this a done deal, unless there is exception language in the arbitration provision. Do we have exact arb clause, in this case?

 

here is the arb clause off the terms and conditions that the plaintiff thoughtfully provided for me..

(a) THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE. PLEASE READ THIS PROVISION CAREFULLY. IT PROVIDES THAT ANY CLAIM RELATING TO YOUR ACCOUNT MAY BE RESOLVED BY BINDING ARBITRATION. YOU ARE ENTITLED TO A FAIR HEARING, BUT THE ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT, AND ARBITRATION DECISIONS ARE SUBJECT TO VERY LIMITED REVIEW. CLAIMS MAY BE ARBITRATED ONLY ON AN INDIVIDUAL BASIS. 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.

 

(b) THE LAWS OF THE UNITED STATES OF AMERICA, INCLUDING THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-16 (THE "FAA"), AND THE LAWS OF THE STATE OF UTAH APPLY TO AND GOVERN THIS AGREEMENT AND YOUR USE OF YOUR ACCOUNT.

(c) "The party initially requesting arbitration shall select either the American Arbitration Association ("AAA") or JAMS as the Arbitration Administrator."

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2 minutes ago, Goody_Ouchless said:

Wow - judge really dropped ball on that one.

It appears so they are taking zombie debt collector creditor friendly to a whole new level

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32 minutes ago, HellGato said:

It appears so they are taking zombie debt collector creditor friendly to a whole new level

They have the right to buy your debt and sue, and they can prove they own it. Unfortunately for them their own contract is coming back to bite them.

 

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1 hour ago, HellGato said:

absolutely here they are:

MTCedited.pdf

MTC3edited.pdf

MTC2.pdf

What would you like to do at this point? Motion for Rehearing is as far as you can take the actual case. You may have a remedy against the judges directly under a Special Action proceeding. Probably not cheap and virtually NO pro se info is available. You'd be winging it, but have us to help you along. 

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10 minutes ago, Harry Seaward said:

What would you like to do at this point? Motion for Rehearing is as far as you can take the actual case. You may have a remedy against the judges directly under a Special Action proceeding. Probably not cheap and virtually NO pro se info is available. You'd be winging it, but have us to help you along. 

I would like to try it but how much would a special action proceeding cost it is the same as the filing fee i already paid for appealing? I know if I prevail I should get that back and I would like to have them follow Statute.

I paid $292 to file the appeal and I would be prepared to file that amount again or something close to that if I had some help with a concise special action motion.

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