Tommylamma

Sued by Midland in Arizona - Barclays Card

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The MTC needs to be formatted like a proper motion.  The heading and captions should look the same as the MSJ you got from Midland.  The affidavit is also not a part of the body of the motion.  It would be an Exhibit that you attach to the motion along with the agreement.  But in this case, you don't need the affidavit.  The only reason for the affidavit would be to head off any attempt by Midland to claim the agreement you attach is not the correct agreement for the account.  Since Midland has provided you with their own agreement, they won't be denying it in your case and you can eliminate the affidavit altogether.

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Once again thank you for you help and patience on this matter Harry.

I've attached my newly formatted MTC and understand you to say I will not need to include an affidavit or the credit card agreement with the motion since the Plaintiff has already supplied one for the court.

 

(Question 1)

They have named my spouse, does mean my spouse must also sign the MTC?

 

(Question 2)

Also, Midland's attorneys provided  an email on the header of the court docs. Would this be a suitable option to send the letter to the lawyer, rather than regular mail?

Was just thinking for expediency, since I'm assuming we're giving a heads up to the lawyers with this letter to hopefully get them to preemptively drop the suit or at worst try to settlement with better terms than I got over the phone. Just a thought.

 

Thanks soooooooo much! 

MTC(legal_format).pdf

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1 hour ago, Tommylamma said:

They have named my spouse, does mean my spouse must also sign the MTC?

Great question!  All named parties are supposed to sign anything filed with the court.

1 hour ago, Tommylamma said:

I've attached my newly formatted MTC and understand you to say I will not need to include an affidavit or the credit card agreement with the motion since the Plaintiff has already supplied one for the court.

Only the affidavit is not necessary.  I would still attach the card agreement to the MTC as an Exhibit because 12-1502 says "On application of a party showing an agreement...."

1 hour ago, Tommylamma said:

Also, Midland's attorneys provided  an email on the header of the court docs. Would this be a suitable option to send the letter to the lawyer, rather than regular mail?

You can only use email if you have the party's permission to do so.  I never bothered and just sent everything first class.

1 hour ago, Tommylamma said:

Was just thinking for expediency, since I'm assuming we're giving a heads up to the lawyers with this letter to hopefully get them to preemptively drop the suit or at worst try to settlement with better terms than I got over the phone. Just a thought.

The reason for the letter is most card agreements say you're supposed to send them notice of your intent to arbitrate.  There's also some debate about the "refusal to arbitrate" language from 12-1502.  My position is that if you never gave them notice, they couldn't have "refused" yet and they could try to argue your MTC should be dismissed as untimely.  It would be an idiotic position for them to take since all you have to do is renew the motion as soon as they do refuse, but I wouldn't be surprised if they ever did make this argument.

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Alright! I think I'm ready to send off my MTC along with the letter to the lawyer. I've added a signature block for my spouse on the Motion and added the exhibit.

I've attached both. Any input would be greatly appreciated. I think I've got everything we've discussed.

To clarify, regular first class mail is fine for both of these documents, there is no need to send certified since I'm filing with court and stating I've sent to plaintiff, correct?

Now on to my MSJ opposition, thanks for everything Harry!

Arbitration letter to Lawyer.pdf

MTC(final).pdf

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10 hours ago, Tommylamma said:

To clarify, regular first class mail is fine for both of these documents, there is no need to send certified since I'm filing with court and stating I've sent to plaintiff, correct?

Yes, first class is fine.  Your proof that you sent it is the certificate of service on the last page where you state that it was mailed.

In the arb letter, I would say you are asking Hoffman's client to advance the fees to you.

I can't read the agreement.  Can you post the entirety of the arb clause?

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1 hour ago, Harry Seaward said:

I can't read the agreement.  Can you post the entirety of the arb clause?

Harry,

I've made the change you pointed out and I've attached the arb clause from the 2014 agreement you posted at the beginning of the thread. I've compared them as best I can and they look like they are exactly the same.

 

ARBITRATION clause.pdf

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4 hours ago, Tommylamma said:

Would it be appropriate to send with the original scan provided by the Plaintiff another copy of just the arb claus like the one I've attached?

Yes, I think that's wise.  You need to make it crystal clear in your MTC that you have taken the verbiage directly from the agreement Midland provided to you.

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I filed my MTC today and sent notice letter to lawyer yesterday and still working on my MSJ opposition. While at the Court today, I asked what the they had for the date on filing a opposition to their MSJ and the clerk said it's 60 days. I was happy to hear that but was a little confused about why 60 days. Why 60? Thanks much.

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I feel I'm making progress with my MSJ opposition. There is A LOT to understand and cover but this forum is soooooo very helpful.

I would greatly appreciate input on what I have so far. I know I have much further to go, but wanted to make sure I was at least on the right path.

I've attached what I have as of right now, still working, but thanks so much in advance for any assistance or guidance on this.

 

 

Opp to MSJ(in-progress).pdf

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Your introductory statement should be more general.  "Plaintiff filed it's lawsuit on xx date and at the same time filed its Motion for Summary judgment.  Plaintiff alleges .....   Defendant has responded to Plaintiff's Complaint......  Defendant also filed a Motion to Compel Private Contractual Arbitration that is, at the time of drafting this Opposition, unruled on by this Court. For the reasons set forth below, this court should GRANT Defendant's Motion to Compel Private Contractual Arbitration and DENY Plaintiff's Motion for Summary Judgment."

And then your Points and Authorities (or Law and Argument) contains all of the things we talked about here for why the motion should be denied.

You need to read through Rule 129 for the requirements of an Opposition.  Specifically you have to include a Controverting Statement of Facts wherein you line-by-line respond to each claim made in Plaintiff's  Statement of Facts, and you have to provide your own SOF.  This is very important: "A statement of facts must be supported by affidavits, exhibits, or other material that establishes each fact by admissible evidence. It is not enough for you to simply deny facts. You must present evidence that shows a genuine dispute of the facts."
https://govt.westlaw.com/azrules/Browse/Home/Arizona/ArizonaCourtRules/ArizonaStatutesCourtRules?guid=ND4E6D1300BBC11E2B693E1305F461EC5&originationContext=documenttoc&transitionType=Default&contextData=(sc.Default)


Here is the Opposition I filed.  Most of the arguments  I made are irrelevant now due to changes in statutes and precedent, but use it as a format reference and then use the arguments discussed earlier in this thread.
http://www.creditinfocenter.com/community/applications/core/interface/file/attachment.php?id=1620
(Notice that I neglected to include a Controverting Statement of Facts.  Fortunately I responded to each material claim in my Affidavit so this seemed to satisfy the Court for the purpose of controverting Plaintiff's SOF.)

On 8/9/2017 at 1:12 PM, Tommylamma said:

I asked what the they had for the date on filing a opposition to their MSJ and the clerk said it's 60 days

Do NOT rely on information you get from the clerks.  Read the Court Rules for your deadline info.

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Harry, in your most recent post you suggest I say "Plaintiff filed it's lawsuit on xx date and at the same time filed its Motion for Summary judgment."

If "lawsuit" is referring to the original summons, then I've messed this up since day one. I didn't receive the MSJ with my summons, it came after my answer to my summons.

After going back and looking at my first post I see that I messed up question 16. Although I tried to explain in the beginning of my post what happened I messed it up right at the end.

I don't know how big of a deal this is at this point. The pressure is getting to me and now I don't know how to proceed. 

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OK, so after freaking out for a little bit and in light of the assumptions of the above post and not really knowing if the Lawsuit/MSJ conflict is valid, I did my best to pull myself together and get to work.

This is what I put together form what you suggested Harry. I was really hoping to get more done, but I'll get back to it again after work tomorrow.

Thanks so much as usual for your support and sorry for the confusion.  I'm determined to keep plowing along.

 

INTRODUCTORY STATEMENT

The Plaintiff, Midland Funding LLC, filed a Motion for Summary judgment on August 14, 2017.  The Plaintiff alleges there are no genuine issues of material fact and provided Separate Statement of Facts in support of its Motion and with it included Exhibits A-F.

A Motion for Summary Judgment provides an opportunity for the moving party to demonstrate for the court that there is no “genuine issue as to a material fact”. See J.C.R.C.P. Rule 129(d) and Ariz. R. Civ. P., Rule 56(c)(1). The Motion For Summary Judgment filed by the Plaintiff is insufficient as a matter of law and does not set forth the True facts upon which Plaintiff seeks a summary judgment. Defendant also filed a Motion to Compel Private Contractual Arbitration that is, at the time of drafting this Opposition, unruled on by this Court.

For the reasons stated herein, none of the material Exhibits presented by Plaintiff can be admitted into evidence. In the presence of genuine issues as to a material fact, and absent of admissible evidence proving its claims, Plaintiff is not entitled to judgment as a matter of law and this court should GRANT Defendant's Motion to Compel Private Contractual Arbitration and DENY Plaintiff's Motion for Summary Judgment.

This Opposition is supported by a Separate Statement of Material Facts with Exhibits, Memorandum of Points and Authorities, and a proposed form of order.

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If this is identity theft then file a police report and send a copy to the lawyers. Also inform the court. When talking to the police give them Midlands name and names of any employees as potential witnesses. I have been sued for an account that wasn't mine so you have to do that quickly to make this outcome change.

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On 8/13/2017 at 10:03 PM, Tommylamma said:

If "lawsuit" is referring to the original summons, then I've messed this up since day one. I didn't receive the MSJ with my summons, it came after my answer to my summons.

If you filed an Answer, you likely didn't screw anything up that can't either be corrected with an Amended Answer or that will be resolved by the Motion to Compel Arbitration.

Just to make sure we have all the info, please post dates (ballpark if you don't want to be exact) of when the lawsuit was filed, when you received the Summons and Complaint, when you filed your Answer and when Plaintiff filed the MSJ.  Also, please post as much of your Answer as you feel comfortable.

23 hours ago, Tommylamma said:

This is what I put together form what you suggested Harry. I was really hoping to get more done, but I'll get back to it again after work tomorrow.

The Opposition I posted was at least 60 hours of work. And probably more.  MSJs at that time were not the go-to JDB weapon of choice so there was very little here in the way of examples for how to respond to one.  I inserted bits and pieces from various cases I found online, but I essentially drafted it from scratch.  I don't advise copying and pasting what I have because, as I said, most of my arguments are now irrelevant because of changes in statutes and precedent that has been set since.  The idea is just for you to see how to assemble a (mostly) proper Opposition.  And again, be sure in your Opposition to incorporate the Controverting Statement of Facts that I neglected to include with mine.

Work on a section and post it here for review.  While you're waiting for someone here to respond, work on another section.  Keep doing that and before you know it, you'll have a complete Opposition.  Your Opposition should be much simpler than mine. You really don't need to get into the weeds on their evidence.  The only evidence issue you need to address is the deficiencies in the affidavit.  Without a valid/proper/conforming affidavit, none of their evidence is admissible.  Then your MTC should be your cornerstone argument against granting a MSJ.  That's a very simple argument.  A.R.S. 12-1502 dictates that a case must be stayed the instant a MTC is filed.  I believe this ties the courts hands on the MSJ unless it first denies the MTC.  12-1502 also directs that the ONLY valid reason for denying a MTC is if the court finds there is no valid agreement to arbitrate.  Since the agreement came from Midland, that would be a very peculiar finding.  The only way I can see it being a legitimate finding is if the court cites a violation of "law and equity" from 12-1501 (notice "1") to render the agreement invalid.  I've not seen it happen yet.

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As usual Harry thanks so much. I really appreciate all the help you've given me on this.

 

I hope this helps to clarify my case. I've attached my original Complaint, didn't bother with Summons as it's the standard language.

Served Original Summons & Complaint: June 17 (not sure the exact date I was served but I think this is it). It's dated June 5 as filed.

Answered using TurboCourt form :  July 6 

At this point I didn't know about this site and answered with something I found elsewhere on the web.

Answer: Responding Party objects to this request on the ground that it is vague, ambiguous, unintelligible and lacks adequate supporting documentation.  The plaintiff has not proven the debt is valid or the amount of the debt is accurate.  Defendant insists that the plaintiff provide the original signed contract agreement, account statements, purchase receipts, and account balances from zero to present balance.  Furthermore, Defendant denies every other allegation because request calls for admission of matter defendant denies and thus it is improper.

 

On 8/1/2017 at 0:28 AM, Tommylamma said:

While out of town I received the MSJ documentation I've already posted (see above) it's dated July 14 and court has it as filed July 19, I didn't get it until July 26.

I filed my MTC Arbitration on Aug 9

I believe that puts my deadline for my opposition to MSJ this Friday, Aug 18

I did hear from one of the lawyers today, he left a voicemail and I called back and left him a voicemail. I assume this is a good sign?

I hope I haven't left anything out. Thanks again.

 

Summons(redacted).pdf

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Has the court even set a trial date yet? It should be about 8 or so months from now. 

Quote

did hear from one of the lawyers today, he left a voicemail and I called back and left him a voicemail. I assume this is a good sign?

he probably wants to see if you're ready to pay him today or if you need another week to come up with the cash. 

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Lawyer called back and offered to settle. Although I believe this to mean my MTC Arbitration caused them concern, I chose to accept a settlement offer of $575, original debt being $1857. 

$500 was my number based on information given early on in this post 

On 8/1/2017 at 2:04 AM, Harry Seaward said:

You're in trouble with the pending MSJ and you need to get a MTC arbitration in front of the judge ASAP.  At this point, I would expect the court to either deny your MTC, or do nothing with it, and grant Plaintiff's MSJ.  I would also be planning to appeal.  The cost for appeal without waivers is about $500.  (You can petition the court for waivers and deferrals of the fees.)  If you're not up for that, I'd be on the phone with Midland's attorney like now trying to work out a settlement agreement.  

 

I'm going to get it paid ASAP so as not to risk a ruling on the MSJ.  If there is any  reason I should not peruse with settlement, please share as the deal is not done yet.

Thanks again for the support of this community, it's been a stressful process but with having members like you Harry have really helped to get through this.

I've attached what lawyer sent. Thanks.

Notice of Settlement.pdf

Settlement Letter.pdf

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