pac58

Im being sued by Midland Funding LLC, case number xxxxxx 

Recommended Posts

I found a typo in the Plaintiff's response. At the end of their response, they state "Plaintiff requests that the Court deny Defendant's motion to dismiss" (emphasis mine).

Share this post


Link to post
Share on other sites

I have been reading "small claims" items online because of the language in the contract but I'm being sued in civil court which has different rules. 

Share this post


Link to post
Share on other sites
36 minutes ago, pac58 said:

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

I would save this for the hearing. Your point for now is that Midland crapped out a "small claims" exception with no info about DE courts and just expects the court to take their word. 

By the way, if $3,500 is in fact the limit for your Justice Court, I would say that knocks the $15,000 limit of the Delaware Court out of the ballpark.

Share this post


Link to post
Share on other sites

@Harry Seaward

In Coconino County, we have small claims court and we have civil court that both fall under the greater "Justice Court." The difference is that small claims allow for a maximum of $3,500 whereas civil allows for a maximum of $10,000.

Plaintiff is using the language from the contract of "small claims" as the common denominator between Delaware and Arizona.

I'm being sued in Civil court, but they are using the "small claims" rules of the contract to keep this from going to arbitration. 

Something about this bothers me.

I need to go have lunch and get away for a bit, I got ahead of myself. Small claims and civil both fall under civil court. 

http://www.coconino.az.gov/510/Flagstaff-Justice-Court

Share this post


Link to post
Share on other sites
1 hour ago, pac58 said:

@Harry Seaward Attached is my full response to Plaintiff's opposition of MTC.

 

 

Formal Response without identifiers.pdf

Looks pretty good. 

1 hour ago, pac58 said:

I have been reading "small claims" items online because of the language in the contract but I'm being sued in civil court which has different rules. 

AZ has a separate "small claims" division of the Justice Court. The problem is the amounts and rules of the Maricopa Justice Court are more like those of the DE JP Court, so I think if this was in Maricopa and they had made those arguments, the appeals court would rule in Midland's favor. But $3,500 to $15,000 is nowhere near equivalent. Not sure what else would come into play in evaluating similarities, but I think it's much longer shot for Midland if that's the case. 

But there are still other obstacles for them.  They have to overcome your 2012 agreement and the caselaw findings that arbitration clauses should be construed liberally, and that doubts should be resolved in favor of arbitration.

  • Like 1

Share this post


Link to post
Share on other sites

Thank you, I will submit my response ASAP. 

I'll keep the rest in mind for court, if my MTC is denied, so that I can hit it harder. I assume that if my MTC is approved I won't go to court at all? Plaintiff will just ask me to drop the arbitration if they drop the suit?

 

 

Share this post


Link to post
Share on other sites

Also, keep in mind that the  2008 agreement specifically says that you agreed not to pursue arbitration if a lawsuit was filed in small claims equivalent court. That language does not appear in the 2012 agreement.  If you end up in an argument over this at a hearing, you need to hammer that point home.

3 minutes ago, pac58 said:

I assume that if my MTC is approved I won't go to court at all? Plaintiff will just ask me to drop the arbitration if they drop the suit?

Correct. 

Share this post


Link to post
Share on other sites

I updated my response to include the fact that I got their response in the mail on May 17th. They dated their response May 11th and I just wanted to be sure that there won't be controversy over my responding more than 5 days later. 

Share this post


Link to post
Share on other sites

It's 5 business days not including the day it was filed. And then because they mailed it,  you're supposed to get another 5 days but the courts always jump the gun on the extra 5 days. 

Share this post


Link to post
Share on other sites
21 hours ago, Harry Seaward said:

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.)

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

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".

 

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

 

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.

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.

Neither of these things are really grounds for a MTD.

Excellent analysis.

  • Like 1

Share this post


Link to post
Share on other sites

When submitting my response at the court the clerk informed me that a date was already set and that Plaintiff had filed their own motion. The clerk wouldn't tell me what that motion is and said that it would come in the mail. I submitted my response to Plaintiff's opposition to my MTC and got it on the record, however, I'm frustrated that Plaintiff's opposition to my MTC took so long to reach me, effectively disabling me from making the most effective response possible. 

I looked my case up online but I don't see the second motion anywhere.

court.jpg

Share this post


Link to post
Share on other sites

Your response is fine. You got all of your oppositions on record.

Let us know when you get the other motion in the mail. 

Share this post


Link to post
Share on other sites
3 hours ago, pac58 said:

Did I have to send a copy of my response to Plaintiff? 

Yes.  A copy of everything you file with the court goes to the other party.  No harm in delaying sending it, however.  They cannot respond to your reply because you get the last word since you filed the original motion.  It's more of a FYI for them.  So go ahead and get it in the mail now if you haven't already.

  • Like 1

Share this post


Link to post
Share on other sites

@Harry Seaward

Got a letter from the court in the mail today:

Notice: oral argument on motion to compel arbitration (Date/time.)

"This matter will not be continued unless a motion to continue or stipulation to continue is filed with the court, based upon good cause, and granted by the court prior to the hearing date." Does this just mean that it won't be pushed back on the calendar unless a motion to continue is filed/approved before the set date?

BTW I still have not received anything about Plaintiff's motion. 

 

Share this post


Link to post
Share on other sites

Ok, so now my biggest concern for you is the Delaware JP Court vs. Coconino Justice Court argument.  It may not come up at all, and they may show up with some other argument they haven't mentioned yet.  If it does come up, you want to first argue that Plaintiff has not shown any similarities and then be prepared to argue the differences in case they happen to come prepared.  Keep your cool and stick to the points you made in your motion and reply.  Keep driving home the point that your agreement is the correct one and Plaintiff hasn't shown any way their agreement is connected to your account.  Point out the defects (Juniper, 2008 date, etc) and all of the other things we talked about here.

Final note, it's entirely possible the lawyer that shows up will have been hired solely to show up in their place that day and know nothing at all about your case.  Either way, he/she will probably try to convince you to settle the debt.  It's your call, obviously, but know that unless the judge finds AZ JC is a close enough analog to DE JP Court, you have a pretty good chance of getting this case into arbitration.  You might have to appeal to do it, but I think you're in pretty good shape.

1 hour ago, pac58 said:

BTW I still have not received anything about Plaintiff's motion. 

I'm guessing there is no motion and the clerk made a mistake.  It doesn't otherwise make sense she would tell you she couldn't tell you what the motion was.  If it was legit, it's a public record and she is supposed to give you a copy if you ask.

Share this post


Link to post
Share on other sites
14 hours ago, Harry Seaward said:

Ok, so now my biggest concern for you is the Delaware JP Court vs. Coconino Justice Court argument.  It may not come up at all, and they may show up with some other argument they haven't mentioned yet.  If it does come up, you want to first argue that Plaintiff has not shown any similarities and then be prepared to argue the differences in case they happen to come prepared.  Keep your cool and stick to the points you made in your motion and reply.  Keep driving home the point that your agreement is the correct one and Plaintiff hasn't shown any way their agreement is connected to your account.  Point out the defects (Juniper, 2008 date, etc) and all of the other things we talked about here.

Final note, it's entirely possible the lawyer that shows up will have been hired solely to show up in their place that day and know nothing at all about your case.  Either way, he/she will probably try to convince you to settle the debt.  It's your call, obviously, but know that unless the judge finds AZ JC is a close enough analog to DE JP Court, you have a pretty good chance of getting this case into arbitration.  You might have to appeal to do it, but I think you're in pretty good shape.

I'm guessing there is no motion and the clerk made a mistake.  It doesn't otherwise make sense she would tell you she couldn't tell you what the motion was.  If it was legit, it's a public record and she is supposed to give you a copy if you ask.

The following is from the Coconino website link which was provided by @pac58.   If the plaintiff raises the small claims argument, I think it proves the OP cannot be in small claims unless the attorney is an employee of the plaintiff.

Who can use the Small Claims Procedure?

The small claims courts can be used by any individual, partnership, association or corporation for civil claims that do not exceed $3,500. Small claims cases are simplified, therefore, lawyers are not allowed. However, they may be allowed to participate if all parties agree. Stipulation for Use of Attorneys may be filed for this purpose any time prior to the hearing. Attorneys can appear in the small claims division if they are representing themselves. Either party may object to the proceedings being held in the small claims division. The request must be made in writing at least 10 working days prior to the time set for the hearing. The case then will be transferred, the rules of civil procedure apply to the case, permitting claims in excess of $3,500, attorney representation, jury trial and appeal. The party requesting the transfer will be assessed a transfer fee.


Who may represent a party in a small claims action?

Statutes governing small claims procedures set forth who may file a small claims action or appear or represent on behalf of such actions.

ARS22-512A,B

    An individual shall represent himself.
    Either a spouse or both may represent a martial community.
    An active general partner or an authorized full-time employee shall represent a partnership.
    A full-time officer or authorized full-time employee shall represent a corporation.
    An active member or an authorized full-time employee shall represent an association.
    Any other organization or entity shall be represented by one of its active members or authorized full-time employees.

 

The following is from the AZ statutes.

 22-512. Parties; representation

B. In a small claims action:

7. An attorney-at-law shall not appear or take any part in the filing or prosecution or defense of any matter designated as a small claim.

Share this post


Link to post
Share on other sites
1 minute ago, BV80 said:

If the plaintiff raises the small claims argument, I think it proves the OP cannot be in small claims unless the attorney is an employee of the plaintiff.

I'm not worried about the court thinking this was filed in an AZ "small claims" court.  My concern is the part of the agreements that says "Justice of the Peace Court in Delaware or the equivalent court in your home jurisdiction".  I can see an appeals court finding the lower court did not err in denying the MTC based on this language in the agreement.

Share this post


Link to post
Share on other sites

Just to update:

Our original pre-trial conference was today however because of my MTC it was moved back by 10 days.  

Plaintiff did not file a motion; the reason it looks like they did is that their opposition to my MTC was filed/labeled as a motion. 

Oral arguments and pre-trial conference are both set for June 12th at 4 pm.

If the judge denies my MTC should I come prepared with a motion to stay a court date so that I can appeal? Do I need to have an appeal ready to submit right then?

Share this post


Link to post
Share on other sites

You have 14 days to notice your appeal after the ruling is entered. The stay on appeal is supposed to be automatic but don't bet the farm on that being the case. 

Share this post


Link to post
Share on other sites

@Harry Seaward

On Friday I received a package in the mail from Bursey. It is a disclosure statement with: a factual basis of claim, legal theory, a trial witness, damages, and trial exhibits. 

1) factual basis of claim: "Defendant entered into an agreement with plaintiff's predecessor in interest, barclay's bank delaware barclaycard with itunes reward, on July 8, 2009. Said account was acquired by plaintiff. Subsequently, defentant(s) defaulted on their account. The present amount owed under the terms, after all setoffs, is $3,560.84. Plaintiff is the owner of that credit account. "

---My first question is to ask why they make it sound like I defaulted after they acquired the account. They bought the debt on August 28, 2015. is this some sort of perjury, alluding to a default after they took ownership when their own records show they purchased the debt 3 years after default?

 

2) Legal Theory: "The acts and omissions of Defendant(s) constitute a breach of contract. Plaintiff has been damaged thereby. Plaintiff's cause of action arises out of contract."

---This is probably naive, but, does midland get to claim that I had a contract with them just because they bought the debt? IE they are not the original owner. 

 

3) trial witness:  (a) custodian of records, emily walker, mycah struck, paula fruth, josh knebel, or jennifer niro, c/o bursey & associates, address, etc.; (b) they lsited me as a trial witness

---My question is who are these people listed in (a) and what is it they are giving testimony of? Shouldn't I be given some indication?

 

4) Trial exhibits: "(1) cardmember agreement, (2) affidavit of bryan jones, dated 5/23/17, with attachments: bill f sale; barclay's bank statements. 

--the cardmember agreement attached is the Juniper agreement. they shrunk it down to the point that is is illegible, except for the title of the agreement. It is literally illegible. 

--also attached is the affidavit of bryan jones, who makes the following points:

     1) he is employed as a legal specialist with access to midland files. he is competent, over 18, etc.  

     2) midland keeps great records, etc.  

     3) defendant owes a balance

     4) date account opened, date of last payment, date of account being charged off

     5) attached is a bill of sale between barclays and midland and also copies of all billing statements

  ----Nowhere in here does he reference the name of the cardmember agreement, he just says "Barclay's Bank Delaware"

---none of the billing statements attached have the word juniper on them, anywhere. 

 

Overall, I need to know if this stuff is related to the pre-trial conference, which is also my oral arguements for motion tocompel, or if this is for the actual trial (if MTC is denied and appeal is denied). 

 

Do I need to respond to this disclosure statement? If so, are my concerns valid IE the juniper agreement isn't applicable, etc. 

 

My PTC/oral arguments for MTC date is tomorrow, Monday the 12th at 4pm. I plan to state: 

"Plaintiff has not shown where the "juniper" agreement came from."

"I deny that I owe anything and I deny that plaintiff has standing to sue on this alleged debt."

"I object to this court's jurisdiction as there is a private arbitration clause and I have a pending motion before this court regarding the improper jurisdiction"

"Plaintiff is attempting to lump a group of courts together and claim they are all "small claims""

 

Share this post


Link to post
Share on other sites
5 hours ago, pac58 said:

is this some sort of perjury, alluding to a default after they took ownership when their own records show they purchased the debt 3 years after default?

Discovery is only sent to the parties - it's not filed with the court or made under penalty of perjury so it can't be perjury.

5 hours ago, pac58 said:

This is probably naive, but, does midland get to claim that I had a contract with them just because they bought the debt? IE they are not the original owner. 

The credit card agreement says the OC can sell the debt at any time and the new owner inherits all rights and responsibilities as the OC.  So, yes, you do have a contract with Midland.  But this is actually good news because it's this contract with them that allows you to force them into Arbitration. :)

5 hours ago, pac58 said:

My question is who are these people listed in (a) and what is it they are giving testimony of? Shouldn't I be given some indication?

yes, they are supposed to give information about the reason they are calling those witnesses.  You have to go on record before trial if you want to object to their witnesses on the 'not enough info' grounds.

5 hours ago, pac58 said:

--the cardmember agreement attached is the Juniper agreement. they shrunk it down to the point that is is illegible, except for the title of the agreement. It is literally illegible. 

--also attached is the affidavit of bryan jones, who makes the following points:

     1) he is employed as a legal specialist with access to midland files. he is competent, over 18, etc.  

     2) midland keeps great records, etc.  

     3) defendant owes a balance

     4) date account opened, date of last payment, date of account being charged off

     5) attached is a bill of sale between barclays and midland and also copies of all billing statements

  ----Nowhere in here does he reference the name of the cardmember agreement, he just says "Barclay's Bank Delaware"

---none of the billing statements attached have the word juniper on them, anywhere. 

Good.  You can attack these things at Trial or opposition to MSJ.

5 hours ago, pac58 said:

Overall, I need to know if this stuff is related to the pre-trial conference, which is also my oral arguements for motion tocompel, or if this is for the actual trial (if MTC is denied and appeal is denied). 

They are sending you the required Disclosure statement.  You're supposed to send one to them as well, but only really necessary if you intend to introduce your own evidence or witness testimony at trial.

5 hours ago, pac58 said:

Do I need to respond to this disclosure statement?

No.  Disclosure is a formality and required by the rules.  They can't spring any surprise witnesses or evidence at trial.  No need for you to to respond to it.

5 hours ago, pac58 said:

My PTC/oral arguments for MTC date is tomorrow, Monday the 12th at 4pm. I plan to state: 

"Plaintiff has not shown where the "juniper" agreement came from."

"I deny that I owe anything and I deny that plaintiff has standing to sue on this alleged debt."

"I object to this court's jurisdiction as there is a private arbitration clause and I have a pending motion before this court regarding the improper jurisdiction"

"Plaintiff is attempting to lump a group of courts together and claim they are all

You need to direct the court's attention to Arizona Revised Statutes 12-1502, specifically subsection A that identifies the ONLY valid grounds for denying a MTC is if the court finds there is no valid agreement to arbitrate between the parties.  If Midland doesn't deny there is an agreement, and the court can find no other grounds to find the agreement invalid, the court should order the parties into private contractual arbitration in accordance with the agreement you submitted.  Put the heat on Midland.  Make them either admit or deny there is an agreement to arbitrate.  If they deny it, ask them why they never submitted an agreement with the court showing no arbitration clause.  If they do submit one, ask them object to it on the grounds that there is no witness there to authenticate and introduce it.

And yes, they have not established by any means whatsoever that their agreement is in any way binding on the underlying account.

I wouldn't deny owing "anything" or deny standing to sue because then you're basically saying there is no agreement.  If there is no agreement, the court cannot order the parties into arbitration.  (On the other hand, someone here reported that Midland's lawyer went to court and themselves said there was no contract.  If they do that with you, ask the court for dismissal right there and then since Midland cannot sue on a breach of contract when there is no contract between the parties.)

Be sure you are prepared to argue the "vast difference" between Delaware Justice of the Peace court and your court to show that they are not "equivalent" and referred to in the agreement.  This means knowing the differences and being prepared to show the court these differences with printed out website info, etc.

The jurisdictional issue is only valid if the court in fact grants the MTC so it shouldn't even come up. 

There is a chance the "lawyer" that shows up won't know anything about your particular case.  Midland sometimes uses rent-a-lawyers that they literally hire off of craigslist to show up for the 'throwaway' hearings.  You'll know pretty much right away if this is the case or not.  If he/she fumbles around and/or has a single file folder with 3 sheets of paper, etc, he's a rent-a-lawyer and probably won't even know what the hearing is about.  But don't come ill-prepared on this possibility.  Come loaded for bear regardless.

Good luck!

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.