HellGato

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

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2 hours ago, Harry Seaward said:

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.

Is the "Motion for Rehearing" filed with the appeals court (superior court)?  Is leave/permission required to  file it?  Is this different than a motion for reconsideration?

If it were me, I'd exhaust whatever options are available with the appeals court (superior court).  The superior court judge made errors of fact and law.

There was a special action jurisdiction appeals case involving arbitration last summer, but the facts are not on point. See here.  Pulling some of the documents might be useful.

 

    

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19 minutes ago, Xerxes said:

Is the "Motion for Rehearing" filed with the appeals court (superior court)?  Is leave/permission required to  file it?  Is this different than a motion for reconsideration?

If it were me, I'd exhaust whatever options are available with the appeals court (superior court).  The superior court judge made errors of fact and law.

There was a special action jurisdiction appeals case involving arbitration last summer, but the facts are not on point. See here.  Pulling some of the documents might be useful.

 

    

maybe a motion for reconsideration citing the statues they should have followed first if i do it swiftly enough and special action if that does not work idk

 

https://govt.westlaw.com/azrules/Document/ND369EAA03FB211E4B4D7C67CCE44C05C?viewType=FullText&originationContext=documenttoc&transitionType=DocumentItem&contextData=(sc.Default)

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26 minutes ago, Xerxes said:

Is the "Motion for Rehearing" filed with the appeals court (superior court)? 

Yes. It's the procedurally the same thing as a Motion for Reconsideration, but there is a SCRAP rule specifically for it. Not sure of the rule number of the top of my head and I'm not home at the moment.

No leave is required. 

I meant for OP to follow this (Rehearing) path first and if it goes nowhere, then consider a Special Action if at all possible. 

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@HellGato Rule 14 of Superior Court Rules of Appellate Procedure spells out how to ask for a rehearing on their ruling
https://govt.westlaw.com/azrules/Document/N1C002AA0717B11DAA16E8D4AC7636430

Subsection (b) sets that no further appeal may be taken.  AZ also has a rule that no Special Action may be taken where there are remedies in the lower court, so if the court denies your rehearing, you're sunk on the Midland decision.

The Special Action I talked about would go against the judges specifically for judicial abuses.  The Midland case would have to be used merely as an example of the court's abuses.  It's entirely possible the Supreme Court would find you have remedies in lower courts that you either a.) have to explore before appealing to the Supreme Court, or b.) have already exhausted with your Midland case.

The other possibility is a Writ of Mandamus.  And it may be you must first seek a Writ of Mandamus before applying for Special Action.

Here is a link to the rules for Special Actions:
https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=N0E359650715611DAA16E8D4AC7636430

I have zero experience with this kind of thing, so the best help I can be would be interpreting the rules and critiquing your drafts.

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12 hours ago, HellGato said:

maybe a motion for reconsideration citing the statues they should have followed first if i do it swiftly enough and special action if that does not work idk

Did you file your response (mentioned here and here) to plaintiff's motion to dismiss the appeal?

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50 minutes ago, Xerxes said:

Did you file your response (mentioned here and here) to plaintiff's motion to dismiss the appeal?

No I had posted them as ideas for feedback in the end I assumed and wrongfully so the judge would know the correct stature or has twisted this up so is sounds like a simple motion to dismiss which of course it is not was motion to compel and asked for dismissal or a stay at the courts own digression. In the end I did not address  his motion to dismiss the appeal since I thought it was moot.

I am leaning toward the motion for reconsideration and pointing these items out clearly as I can in that motion. I may be able to do this one in time and file it monday or tuesday.

 

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24 minutes ago, HellGato said:

No I had posted them as ideas for feedback in the end I assumed and wrongfully so the judge would know the correct stature or has twisted this up so is sounds like a simple motion to dismiss which of course it is not was motion to compel and asked for dismissal or a stay at the courts own digression. In the end I did not address  his motion to dismiss the appeal since I thought it was moot.

I am leaning toward the motion for reconsideration and pointing these items out clearly as I can in that motion. I may be able to do this one in time and file it monday or tuesday.

 

What did the plaintiff say in its motion to dismiss your appeal?

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46 minutes ago, BV80 said:
 

What did the plaintiff say in its motion to dismiss your appeal?

Wait a minute. @HellGato Did the case ever get to the appellate court or was the appeal shut down at the justice court? 

Did you ever file a motion to dismiss? Like in the very beginning of the case maybe? 

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2 hours ago, BV80 said:

What did the plaintiff say in its motion to dismiss your appeal?

I quoted the text of the motion yesterday, here, based on the pdf contained here.

You previously commented about the contents of the motion here.

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3 hours ago, HellGato said:

I assumed ... wrongfully ... (that) the judge would know the correct statute ... (but he) has twisted this up so (it) sounds like a simple motion to dismiss which of course it is not ... (it) was (a) motion to compel and (I) asked for dismissal or a stay at the courts own (discretion).


The superior court judge (commissioner) should have been able to apply the statute correctly.

There doesn't appear to be anything in the record that indicates that your motion was a motion to dismiss made pursuant to jcrcp 116(a)(2) or arcp 12(b).

Having "dismiss" in the heading caption text is purely an aesthetic stylistic variant.  What matters in the motion is the statute(s) cited.

The superior court judge (commissioner) likely made an error of fact in describing your motion as a motion to dismiss.

Did the plaintiff ever file an appeal brief?  The justice court granted (likely improperly) a 30 day extension (pdf here) to file an appeal brief .

 

3 hours ago, HellGato said:

In the end I did not address  his motion to dismiss the appeal since I thought it was moot.

It was reasonable for you to have considered plaintiff's motion (to dismiss the appeal) moot.

Plaintiff filed the motion in justice court, with a note to refer the motion to superior court.

Even though you did not respond to the motion, the justice court ruled (likely improperly) on the motion (pdf here).

The justice court granted the alternative relief sought (an extension to file an appeal brief) rather than dismissing the appeal.

Then the superior court, apparently, ruled on plaintiff's motion to dismiss the appeal again, but not based on any of the arguments in plaintiff's motion.

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7 minutes ago, Xerxes said:

There doesn't appear to be anything in the record that indicates that your motion was a motion to dismiss made pursuant to jcrcp 116(a)(2) or arcp 12(b).

In the plaintiff's motion to dismiss the appeal, it stated that the OP's appeal was based upon a denial of a motion to compel arbitration.  Apparently, the court missed that statement.

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Midland knows a denied MTC is appealable in AZ because they have had this argument shot down several times here.  They intentionally mislead the court.

I would first work on filing a motion to rehear the appeal. Make your cornerstone argument that the appeal which is based on a denied MTC is not subject to 12-2101 as Midland argued, but is instead governed by 12-2101.01, which clearly states that a denied MTC is immediately appealable. 

If the Superior Court reverses itself, I would then get the ball rolling on getting the case into arbitration. I typically don't like counter claims in arbitration, but I really believe you have one here for Midland intentionally misleading the court. So instead of settling for Midland just walking away from their debt, I'd push really hard to get a little something in my pocket from them before letting them of the arbitration hook. 

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1 hour ago, Harry Seaward said:

 They intentionally mislead the court.

 

Not the first time here for a JDB to do that.  But you can bet if a pro se did it the JDB would seek and get sanctions. The judge might even hold the pro se in contempt.  

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1 hour ago, debtzapper said:

Not the first time here for a JDB to do that.  But you can bet if a pro se did it the JDB would seek and get sanctions. The judge might even hold the pro se in contempt.  

We really don't know all the details because I'm not sure we know exactly what the OP wrote in his appeal. 

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