pac58

Im being sued by Midland Funding LLC, case number xxxxxx 

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Good luck, and hopefully all goes well.  Worst case at this point is the court denies your MTC and you then have to decide if you want to appeal or just duke it out in court.  But we'll cross that bridge if we come to it.

In about 3 days you might be able to hear Midland kicking themselves for not taking your $500 settlement offer since that's likely the best shot they ever had at getting any return on their $100 investment.

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We got a letter yesterday from plaintiff with a copy of their argument against our MTC. They have a different contract than the one we used. Theirs is a "Juniper Visa Card" from Barclays that has a different arbitration clause that states:

"As an exception to arbitration you and we may pursue a Claim within the jurisdiction of the justice of the peace court in Delaware4, or the equivalent court in your home jurisdiction (each a "small claims court"), provided that the action remains in that court, is made on behalf of you and/or your authorized user only and is not made part of a class action, private attorney general action or other representative or collective action. Further, you and we agree not to seek to enforce this arbitration provision, or otherwise commence arbitration based on the same claims in any action brought before the small claims court"

 

They cited:

 State ex rel Goddard v. R. J. Reynolds Tobacco Company, 206 Ariz. 117, 75 P. 3d 1075 (App. 2003) The actual purpose of arbitration would be undercut where a party is permitted to claim a right to private arbitration when the costs of arbitration grossly exceed the amount of pursuing the matter in justice court.

and

The court of appeals has considered the concept of economic waste as it relates to judicial proceedings. In Cordova . City of Tucson, 489 P.2d, 15 Ariz.App. 469 (Ariz. App., 1971), the defendants appealed the court's order granting plaintiff city of Tucson's right to condemn property, and order that the only issue left to be tried is the amount of just compensation to be paid to defendants. The court of appeals dismissed the appeal as premature, finding that the subject order was not a final judgment because there can be no judgment of condemnation until damages have been assessed. However, the court of appeals did note that judicial relief may be available at this stage of the proceedings to avoid economic waste. (Although no rights of appeal exist, judicial intervention by way of special action may be available to avoid the serious economic waste which would result from a long drawn-out trial when the condemning authority has no right to condemn the land in question.) Cordova . City of Tucson, 489 P.2d, 15 Ariz.App. 469 (Ariz. App., 1971),

 

After their Exhibit A, attached, there is one sheet that looks like the formal court paperwork, it says:

"the defendants having filed a motion to compel private arbitration, plaintiff having responded, and the court having considered all filings therewith, 

IT IS ORDERED that: the defendant's motion to compel private arbitration is denied."

It isn't signed or dated. Is this the plaintiff's attempt to force it, or is this the court's actual response? There is no judge listed anywhere on it, so it feels like their attempt to force it. 

 

I understand that the last thing they want is arbitration, but wouldn't it be an economic waste to force us into a lawsuit? No idea how to proceed from here, but I assume I need to write something up quickly and file it.

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The attachment is meant to make it easier for the judge, although it should have both options. I agree that there is no economic waste - in fact there is "less," since the plaintiff will never arbitrate.

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I have been writing my thoughts down and have come up with this letter in response to their own letter:

 

 

Dear Judge,

I have received the Plaintiff’s response to my Motion To Compel and wish to reinforce my reasons for making the motion: I have made multiple attempts to settle and of those many attempts only once has Plaintiff agreed to let me make payments, otherwise, they wanted a large lump sum payment of $3,000+. The only time a payment plan was offered by Plaintiffs was with the stipulations that I pay the full amount of ~$3,600, including court fees, and including lawyer’s fees. Combined, these numbers put the total amount much, much higher than the original debt. I believe that private arbitration will create an environment where both parties may leave satisfied and my contract allows me this request.

I would also like to speak to the notion that arbitration would only be an economic waste. Midland Funding LLC purchased the debt for pennies on the dollar, an amount that they have refused to reveal. What is the value of the purchase of the debt against the value of going to court? Would that not also be an economic waste? By their own standards and definitions would it not be prudent to drop the case altogether? 

By making the Motion To Compel I am asking for a fighting chance. I cannot afford a lawyer and am not able to defend myself in court. My attempts to settle have been denied and the costs of going to court outweigh the supposed debt.

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I think you need to stick to legality and not emotion - for example, the court doesn't care what, if anything, Midland paid for the account. On another forum it has been mentioned that Barclays has made a strong argument in favor of arbitration in other cases. The suggestion is to find an example of Barclays motion to compel and attach that as an exhibit - let them argue against their own contract.

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Was this originally a Juniper card? Is there a date on the agreement they attached? Did they introduce the agreement with an affidavit? 

Remember I said they might try to use the small claims exemption,  however, in order to be successful,  they have to either sue you in Delaware JP Court or show that AZ justice court is the equivalent of the DE JP Court. I would point out they have done neither. 

Also, neither of the cases they cited have anything to do with contractually agreed upon arbitration.  AZ and the federal courts have very strongly favored arbitration when there  exists between the parties an agreement to arbitrate.  Read through the case I posted for caselaw to use in your response. 

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There is no official date posted, but the date of "12/08" is all over this agreement. I opened the card in 2009 and am using the 2012 version of the agreement. Does an agreement from 2008, one year before I got a card, apply to me?

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Was this originally a Juniper card?

What do you mean 12/08 is all over the agreement? Like someone hand wrote that on it? 

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I do not believe it was a juniper card, I'm not sure how to find out though.

12/08 appears on the table of contents, see attached image. 

 

IMG_4204 (2).JPG

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Oh I see. OK, that will probably stand in for a publishing date. 

With Dec. 2012 as your last payment, the 2012 agreement went into effect before the account was closed and is the correct agreement.  Additionally,  Midland has produced nothing to establish where it came up with that agreement or why it says it's for a "Juniper" card. 

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@pac58

If Midland didn't reference "Juniper" anywhere (complaint, affidavit, etc.), point it out. 

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After reading other similar threads, I believe that my MTC was not filed separately. The clerk said it didn't need to be and that it could all go in together. I was relieved at not needing to pay another fee and didn't think that my MTC would get buried. 

I will go to the courthouse ASAP to file it separately, should I add anything to it now that I know a little bit more?

The copy of the response letter by Bursey is not dated by the court, only by Bursey's office. My copy of the MTC is court dated May 4th, but if my original MTC wasn't actually filed then it doesn't matter if Bursey responded within 10 days or not. 

Now that Bursey is suddenly using a juniper agreement, with no previous mention of it anywhere, and because there is no copy of my signed agreement either, should I consider a motion to dismiss?

 

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What makes you think it wasn't filed properly? There is no fee to file any motion. You would have only paid the answer fee and that's it. 

Did you see the clerk separately stamp the court's copy of the MTC?

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Ok, i remember now the clerk saying something like that. Apologies. I still want to go check because it's gnawing at me.

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3 hours ago, Goody_Ouchless said:

in fact there is "less," since the plaintiff will never arbitrate.

I would love to see someone call them out on this in formal motion litigation.  To bad all of my debts are long past SOL.

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1 minute ago, pac58 said:

Ok, i remember now the clerk saying something like that. Apologies. I still want to go check because it's gnawing at me.

 Definitely check. Ask if there is a record of a motion to compel being filed by the defendant. It's kind of irrelevant since Bursey has filed a response with the court,  the court can either go back and find it or you can show your stamped copy when you go in for your court appearance. 

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We assume that Bursey filed with the court, but my copy of his response isn't stamped by the court.

At this point, I should be preparing my own response? If so, does my response need to include things like:

1) The 2008 agreement used by the Plaintiff is not applicable. If Dec. 2012 was the last payment, then the 2012 agreement (Exhibit in MTC) went into effect before the account was closed and is the correct agreement. 

2) The two cases cited have nothing to do with contractually agreed upon arbitration;  AZ and the federal courts have very strongly favored arbitration when there exists between the parties an agreement.

3) No copy of the original agreement with signature.

4)If arbitration is an economic waste for the Plaintiff then going to court is an economic waste for the Defendant; the cost of an attorney and fees to defend oneself in court become instantly uneconomic. The Plaintiff does not wish to settle so I am requesting arbitration, an option afforded me by the agreement. 

 

 

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6 hours ago, pac58 said:

We assume that Bursey filed with the court, but my copy of his response isn't stamped by the court.

Right.  They don't get the copy they send stamped.  It's not needed on the copies that are sent to the other party.  No stamp is no indication that it wasn't filed.  (there's a ton of negatives in that statement, but I think you know what I mean.)

6 hours ago, pac58 said:

At this point, I should be preparing my own response?

YES!  You only have 5 days (plus, technically, an additional 5, so 10 total) to get your response filed.

6 hours ago, pac58 said:

1) The 2008 agreement used by the Plaintiff is not applicable. If Dec. 2012 was the last payment, then the 2012 agreement (Exhibit in MTC) went into effect before the account was closed and is the correct agreement. 

Also, Plaintiff's agreement is for a Juniper account, however there has been no prior allegations of the underlying account having been associated with Juniper.  Furthermore, Plaintiff makes no accounting whatsoever for it's possession of this agreement.  They don't claim to know where it came from or even allege that it's the correct one for this account or in effect during the life of the account.  There's certainly no sworn testimony introducing the agreement.  (I think I would additionally file a motion to strike the agreement using these same arguments.  But this isn't necessary.  I just go the extra mile to drive a point home.)  In contrast, you have introduced your 2012 agreement with sworn testimony as having been the correct agreement for the account and having been in effect during the life of the account.  Maybe make some mention that 2008 is a year before the account was opened, yet Plaintiff makes no attempt to reconcile this discrepancy.  I think somewhere in your reply I would quote this paragraph from the agreement to drive the point home: "This document is our standard form credit card agreement in effect on the last business day of the previous calendar quarter that ended on 12-31-2012".

 

6 hours ago, pac58 said:

2) The two cases cited have nothing to do with contractually agreed upon arbitration;  AZ and the federal courts have very strongly favored arbitration when there exists between the parties an agreement.

I thought I had posted it here in your thread but I see that I didn't.  You need to read this case to see just how highly AZ courts regard arbitration agreements.  Use the caselaw cited in this opinion.  In your motion I'd even use word-for-word the language in this opinion where she talks about arbitration in contracts.  The main reason is because if your MTC is denied and you choose to appeal it, your appeal will go right to the woman that wrote this opinion.
http://www.courtminutes.maricopa.gov/docs/Lower Court/082016/m7481002.pdf

 

6 hours ago, pac58 said:

3) No copy of the original agreement with signature.

Forget about this.  There is no signature needed to open a credit card account.  If winning these lawsuits were this easy the entire credit card industry would cease to exist.

6 hours ago, pac58 said:

4)If arbitration is an economic waste for the Plaintiff then going to court is an economic waste for the Defendant; the cost of an attorney and fees to defend oneself in court become instantly uneconomic. The Plaintiff does not wish to settle so I am requesting arbitration, an option afforded me by the agreement.

No Court of Record in AZ has ever found that "economic waste" is a valid reason for denying a Motion to Compel private contractual arbitration.  (I would actually include this and your #4 responses up with your arguments of #2.)  I would leave out the part about them not wishing to settle - they could make the same argument about you.

You also need to address the "small claims" argument Midland is trying to use.  While not as strongly worded as the 2008 agreement, the  Small Claims language does appear in some form in the 2012 agreement, and not responding to the "small claims" argument leaves it unopposed for Midland to move in to compel the judge to find that AZ Justice Court is the same as DE JP Court.

Quote

Now that Bursey is suddenly using a juniper agreement, with no previous mention of it anywhere, and because there is no copy of my signed agreement either, should I consider a motion to dismiss?

Neither of these things are really grounds for a MTD.

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18 hours ago, Harry Seaward said:

You also need to address the "small claims" argument Midland is trying to use.  While not as strongly worded as the 2008 agreement, the  Small Claims language does appear in some form in the 2012 agreement, and not responding to the "small claims" argument down leaves it unopposed for Midland to move in to compel the judge to find that AZ Justice Court is the same as DE JP Court.

@Harry Seaward

I am having a hard time wording this point. I get the concept but simply am at a loss as to how to say "The Delaware JP Court and the Arizona Justice Court are not the same and I argue that assumption. Because of this difference, and the reasons listed in Defendant's Motion To Compel, private arbitration is the only legal option."

Can you show me an example of how this has been successfully worded? Thank You.

 

 

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@Harry Seaward

I responded to your advice just a moment ago (above) with a specific question. This post has my full response, sans the specific portion above:

 

Defendant's Response

To put it plainly, the 2008 agreement used by the Plaintiff is not applicable. December 2012 was the date of the last payment thus the 2012 agreement, included with Defendant’s original Motion To Compel, went into effect before the account was closed and is the correct agreement. 

Also, Plaintiff's agreement is for a Juniper account, however, there has been no prior allegations of the underlying account having been associated with Juniper.  Furthermore, Plaintiff makes no accounting whatsoever for its possession of this agreement.  They don't claim to know where it came from or even allege that it's the correct one for this account or in effect during the life of the account.  There's certainly no sworn testimony introducing the agreement. Additionally, the Juniper agreement is dated as from 2008, a year before the account was opened, yet Plaintiff makes no attempt to reconcile this discrepancy. 

In contrast, Defendant has introduced the 2012 agreement with sworn testimony as having been the correct agreement for the account and having been in effect during the life of the account. Using Barclay’s own words, the 2012 agreement states that "this document is our standard form credit card agreement in effect on the last business day of the previous calendar quarter that ended on 12-31-2012".

In response to the cases cited by Plaintiff: the two cases cited by Plaintiff have nothing to do with contractually agreed upon arbitration; AZ and the federal courts have very strongly favored arbitration when there exists between the parties an agreement.

Clarke v. ASARCO Inc., 123 Ariz. 587, 589, 601 P.2d 587, 589 (1979). Arbitration is a favored method for resolving disputes where a matter is subject to arbitration. As our Court of Appeals 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 Steelworkers of America v. Warrior and Gulf Navigation Co., 363 U.S. 574, 80 S. Ct. 1347, 4 L. Ed.2d 1409 (1960); Robert Lawrence Co. v. Devonshire Fabrics, Inc., 271 F.2d 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 & Rubber Co. v. United Rubber Workers of America, Local Union No. 100, AFL-CIO, 168 Cal.App.2d 444, 335 P.2d 990 (1959); Bewick v. Mecham, 26 Cal.2d 92, 156 P.2d 757 (1945).

With regard to Plaintiff’s argument that arbitration is an economic waste: no Court of Record in AZ has ever found that "economic waste" is a valid reason for denying a Motion to Compel private contractual arbitration. If arbitration is an economic waste for the Plaintiff then going to court is an economic waste for the Defendant; the cost of an attorney and fees to defend oneself in court become instantly uneconomic.

Put "small claims" argument here. 

 

 

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I'm reading the rules that govern the Delaware JP court and, in the final paragraph on the first page, it says they handle $15,000 and below. Our Justice Court handles $3,500 and below. Is that a significant difference?

Delaware JP Court: http://courts.delaware.gov/forms/download.aspx?id=39328

AZ Justice Court: http://www.coconino.az.gov/1275/Small-Claims

Further, the amount that Plaintiff wants from me is $3,560.84 but the AZ justice court "small claims" rules say that it handles $3,500 and below.  My amount is higher and, were Plaintiff to win in court, that amount would be even higher.  

AZ Justice Court: http://www.coconino.az.gov/1275/Small-Claims

 

 

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2 minutes ago, pac58 said:

I am having a hard time wording this point. I get the concept but simply am at a loss as to how to say "The Delaware JP Court and the Arizona Justice Court are not the same and I argue that assumption. Because of this difference, and the reasons listed in Defendant's Motion To Compel, private arbitration is the only legal option."

Plaintiff has argued that their claims against me are not subject to arbitration because the agreement they have presented states "As an exception to arbitration you and we may pursue a Claim within the jurisdiction of the justice of the peace court in Delaware, or the equivalent court in your home jurisdiction (each a "small claims court")...  you and we agree not to seek to enforce this arbitration provision, or otherwise commence arbitration based on the same claims in any action brought before the small claims court".  For the reasons already stated,  I contend Plaintiff's 2008 agreement is not the correct one for the underlying account in this matter.  In the event this Court finds the language of the 2008 agreement binding on this lawsuit,  or finds the language in the correct 2012 agreement similar to that of the 2008 agreement, Plaintiff's "small claims" argument still fails as Plaintiff filed its lawsuit against me,  not in a Delaware or small claims court as required by this clause,  but in a Maricopa Justice Court.  If Plaintiff now wishes to argue that a Maricopa Justice Court is an "equivalent court" to that of the Delaware Justice Court, Plaintiff has put forth absolutely no information about the Delaware Justice Court for this Court to be able to compare the two courts and to make a determination as to the validity of Plaintiff's assertions.

4 minutes ago, pac58 said:

I'm reading the rules that govern the Delaware JP court and, in the final paragraph on the first page, it says they handle $15,000 and below. Our Justice Court handles $3,500 and below. Is that a significant difference?

It's not your job to compare the two. Plaintiff made the claim,  they have to support it. 

(Our  Justice Court limit is $10,000, not $3,500. $3,500 is for small claims,  I think. )

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Is that my argument right there?

"The Delaware JP Court is not equivalent to the Arizona Justice Court in that the Delaware JPC handles "small claims" not to exceed $15,000 whereas the Arizona JC "small claims" rules state that the amount must not exceed $3,500. Being that the Plaintiff is suing for more than the Arizona Justice Court allows and that this amount is allowed in the Delaware Justice of the Peace Court, it is shown that the two courts are not the same and Plaintiff's argument becomes invalidated."1

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I see your point.

Just FYI, they filed in Coconino County. Our website is where I'm pulling "small claims" numbers.

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