LaneBlane

Attacking a JDB’s Standing | Need to Respond to Interrogatories, RPD, RA

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18 hours ago, WhoCares1000 said:

I have to ask, who told you that the stay would have to be lifted in order for you to file a motion for sanctions? It does not make sense because it would allow the other party to ignore a judge's order with impunity if the court could never be informed of that because the other party would be harmed by informing the court. I think it is the cost of filing the motion that is stopping you more than any legal requirement.

 

12 hours ago, fisthardcheese said:

I don't know this to be true.  As @WhoCares1000 said above, that would just be an easy loophole all attorneys could use to get around court ordered stays they don't like.  It doesn't make sense and I have never seen anyone have to do this before filing a motion for sanctions like this.

 

I briefly spoke with an attorney last year about filing a motion for sanctions while he was handling a real estate issue for me.   It was explained to me that the proceedings would need to resume (stay lifted) before my motion for sanctions could be heard.  This would require me to file a motion to lift stay or combine this motion with the motion for sanctions.  This is why I never went down this road.

 

18 hours ago, WhoCares1000 said:

As for the small claims idea, that was after the current case is dismissed if that is what happens. At that point, you have a cause of action which is separate from their cause of action and you can act on that too (of course, if the underlying debt is still within SOL, you want to consider that too). I would not expect to you go there today.In fact, if they do go to small claims, you would have a counter claim against them for the initial JAMS fee that you can also have heard at the same time. That is another reason why I don't think they will be so quick to run to small claims court.

I completely agree.  If the case is dismissed without prejudice, I wouldn't bring a cause of action against them in small claims court.  The money I'm out-of-pocket wouldn't be worth it.  If, however, the JDB filed in small claims, I would file a counter claim.

 

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6 hours ago, LaneBlane said:

 

 

I briefly spoke with an attorney last year about filing a motion for sanctions while he was handling a real estate issue for me.   It was explained to me that the proceedings would need to resume (stay lifted) before my motion for sanctions could be heard.  This would require me to file a motion to lift stay or combine this motion with the motion for sanctions.  This is why I never went down this road.

 

I completely agree.  If the case is dismissed without prejudice, I wouldn't bring a cause of action against them in small claims court.  The money I'm out-of-pocket wouldn't be worth it.  If, however, the JDB filed in small claims, I would file a counter claim.

 

Why would they file in small claims court?  You just would MTC them again and be in the same spot.

 

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4 hours ago, fisthardcheese said:

Why would they file in small claims court?  You just would MTC them again and be in the same spot.

The Arbitration Provision allows either party to file in small claims.

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I got to thinking about this. Another option since you cannot file a motion for sanctions is to simply let the court try to dismiss for lack of prosecution and see what the other side does.

If they try to oppose the motion, you would then file a motion for sanctions at that point because the other side too would have to lift the stay to file their motion. At that point, let the finger pointing begin and the judge will have to figure it out.

If they let the case dismiss and try to file in small claims court, you file your counterclaim and then offer then a mutual dismissal with prejudice of all claims forever. That might allow you to get this off your credit report. Remember they run the risk of the judge accepting your accounting and demand for reimbursement of the JAMS filing fee and might end up writing you a check in the end.

They let the case dismiss and you never hear from them again. True that this stays on your credit report but they have probably found easier targets and want nothing to do with you.

Those are your options (other than coming up with a settlement in this case). Maybe someone else can see something else.

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As I recall, since the facts are on your side, regarding accounting, didn't you once reconsider and figure that court may be the best place for this?

 

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2 hours ago, LaneBlane said:

The Arbitration Provision allows either party to file in small claims.

That is rendered moot. They already filed in court and the court ordered arbitration.

Either party can file in small claims, at which point the opposite party can also MTC back to arbitration.   This is an absolute non factor.  You are reading so much into things that you are making up invisible reasons to shoot yourself in the foot.

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1 hour ago, Goody_Ouchless said:

As I recall, since the facts are on your side, regarding accounting, didn't you once reconsider and figure that court may be the best place for this?

 

If I had to defend this in court, I'm realistically confident I'd prevail.   I've had plenty of time to gather documentation and do a 'deep dive' accounting.

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1 hour ago, fisthardcheese said:

That is rendered moot. They already filed in court and the court ordered arbitration.

Either party can file in small claims, at which point the opposite party can also MTC back to arbitration.   This is an absolute non factor.  You are reading so much into things that you are making up invisible reasons to shoot yourself in the foot. 

If the court dismisses the case without prejudice for lack of prosecution, wouldn't the JDB be able to re-file their case in small claims?

Even if the court ordered arbitration, doesn't this become a moot point if the case is dismissed without prejudice?

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1 hour ago, LaneBlane said:

If the court dismisses the case without prejudice for lack of prosecution, wouldn't the JDB be able to re-file their case in small claims?

Even if the court ordered arbitration, doesn't this become a moot point if the case is dismissed without prejudice?

They could refile in any court they want - small claims or otherwise.  I don't get your hang up on this point.  Not only would you be so special to be the only person to have a JDB refile after dismissal, but you would just do another MTC and be back in your current position.  I still don't understand why this is even a consideration given where you are currently at in this case.

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9 minutes ago, fisthardcheese said:

but you would just do another MTC and be back in your current position. 

I believe he is saying there is Small Claims exception. 

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6 minutes ago, Goody_Ouchless said:
 

I believe he is saying there is Small Claims exception. 

No, he is hung up on the irrelevant rule in AAA which says small claims may be chosen by any party, even though there is a court order rendering that moot.

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8 minutes ago, fisthardcheese said:

They could refile in any court they want - small claims or otherwise.  I don't get your hang up on this point.  Not only would you be so special to be the only person to have a JDB refile after dismissal, but you would just do another MTC and be back in your current position.  I still don't understand why this is even a consideration given where you are currently at in this case.

If the JDB's case is dismissed without prejudice, I'm hoping that will be the end of it.  However, there is a chance, albeit a small one, that the JDB will file in small claims.

It looks like I'm missing something here.  On what grounds I could file an MTC in small claims?  1) The arbitration agreement allows the parties to file a complaint in small claims or arbitration, 2) The MTC was granted in a case that would have been dismissed without prejudice for lack of prosecution.

 

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8 minutes ago, Goody_Ouchless said:

I believe he is saying there is Small Claims exception. 

Yes.  As I've said, the arbitration agreement allows either party to file a case in small claims.

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9 minutes ago, fisthardcheese said:

No, he is hung up on the irrelevant rule in AAA which says small claims may be chosen by any party, even though there is a court order rendering that moot.

As I mentioned previously, the Arbitration Provision is what allows either party to file in small claims.  I've also referred to it as the arbitration agreement.  Maybe I should have been more clear.

While this was in arbitration, the matter fell under JAMS Streamlined Arbitration Rules & Procedures.  Since JAMS closed the case last year for non-payment, I'm not even concerned about these rules at the moment.

 

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20 hours ago, LaneBlane said:

As I mentioned previously, the Arbitration Provision is what allows either party to file in small claims.  I've also referred to it as the arbitration agreement.  Maybe I should have been more clear.

While this was in arbitration, the matter fell under JAMS Streamlined Arbitration Rules & Procedures.  Since JAMS closed the case last year for non-payment, I'm not even concerned about these rules at the moment.

 

 

Show me where this OPTION removes your ability to MTC once again in small claims court and move it back to arbitration.

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4 hours ago, fisthardcheese said:

 

Show me where this OPTION removes your ability to MTC once again in small claims court and move it back to arbitration.

 

Small Claims Court Option. All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of your residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal (including claims transferred by the small claims tribunal to another court) shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.

According to Small Claims Court Option (text underlined above), all parties have the right to file in small claims.

Am I missing something here?  If the current case is dismissed without prejudice, it's my understanding that the JDB can re-file their case in small claims if they choose to do so.  Are you saying the JDB would need to re-file in the same court (regular civil court) which would allow me to file another MTC?

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23 hours ago, LaneBlane said:

 

Small Claims Court Option. All parties, including related third parties, shall retain the right to seek adjudication of an individual (and not class or representative) Claim in a small claims tribunal in the county of your residence for disputes within the scope of such tribunal’s jurisdiction. Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal (including claims transferred by the small claims tribunal to another court) shall be resolved by binding arbitration. Any appeal of a judgment from a small claims tribunal shall be resolved by binding arbitration.

According to Small Claims Court Option (text underlined above), all parties have the right to file in small claims.

Am I missing something here?  If the current case is dismissed without prejudice, it's my understanding that the JDB can re-file their case in small claims if they choose to do so.  Are you saying the JDB would need to re-file in the same court (regular civil court) which would allow me to file another MTC?

No, I'm saying why are you even worrying about this.  In the highly unlikely event they re-file and use small claims, you would just file another MTC.  This language in the contract is wholly meaningless.

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30 minutes ago, fisthardcheese said:

No, I'm saying why are you even worrying about this.  In the highly unlikely event they re-file and use small claims, you would just file another MTC.  This language in the contract is wholly meaningless.

I don't understand why the language in the arbitration agreement is meaningless.  The arbitration agreement says they can file in small claims.  How can this be meaningless?

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13 minutes ago, LaneBlane said:

I don't understand why the language in the arbitration agreement is meaningless.  The arbitration agreement says they can file in small claims.  How can this be meaningless?

There is no small claims exclusion in your arbitration provision.   There’s no language that says arbitration is prohibited if a lawsuit is filed in small claims.  

While they have the option to file in small claims, you still have the option to arbitrate.   

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20 minutes ago, BV80 said:

There is no small claims exclusion in your arbitration provision.   There’s no language that says arbitration is prohibited if a lawsuit is filed in small claims.  

While they have the option to file in small claims, you still have the option to arbitrate.   

You already explained this very well back on page 2 of this now ridiculous thread.  There isn't any other way to explain it.

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57 minutes ago, BV80 said:

There is no small claims exclusion in your arbitration provision.   There’s no language that says arbitration is prohibited if a lawsuit is filed in small claims.  

While they have the option to file in small claims, you still have the option to arbitrate.   

Thank you for the explanation, BV80.  I completely get it now.

 

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37 minutes ago, fisthardcheese said:

You already explained this very well back on page 2 of this now ridiculous thread.  There isn't any other way to explain it.

Sorry for frustrating the heck out of your Fist.  I honestly didn't understand the language in the small claims option didn't invalidate a party's desire to arbitrate.

Looks like this girl's in pretty good shape!

Thank you.

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