LaneBlane

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

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8 hours ago, BV80 said:

If the judge grants the MTC arbitration and the OP files a claim with JAMS, the plaintiff would have to pay its share of the arbitration fees.  If it doesn't do so, JAMs dismisses the claim, and the plaintiff tries to refile in small claims, all the OP has to do is show the judge's order and how the plaintiff failed to pay its fees.

Even if the agreement has a small claims exclusion, in the event the judge grants the MTC in the current lawsuit, one could make the argument that the plaintiff lost its chance to sue when it failed to pay arbitration fees.

Assuming the cc agreement contains the same language as the agreement in the other thread, it's not ambiguous.  Any creditor, JDB, or attorney who tries to claim that the language excludes small claims actions is either dense or intentionally misinterpreting the meaning of the sentence.

Here is the language in the contract regarding small claims:  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.

If the judge grants the MTC arbitration, and I file a claim with JAMS immediately afterwards, the question is whether or not the plaintiff can go ahead and file in small claims and force my claim out of arbitration.

The way I understand this paragraph of the contract, both parties retain the right to seek adjudication in small claims.  They are not bound to.  There also isn't language favoring small claims over arbitration.  It merely states small claims is an option to arbitration.

If I file a claim with JAMS, wouldn't I be considered the party seeking adjudication?  Likewise, wouldn't it be my decision to choose arbitration over small claims?

 

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3 hours ago, LaneBlane said:

If the judge grants the MTC arbitration, and I file a claim with JAMS immediately afterwards, the question is whether or not the plaintiff can go ahead and file in small claims and force my claim out of arbitration.

Could the lawsuit have originally been filed in small claims?

3 hours ago, LaneBlane said:

The way I understand this paragraph of the contract, both parties retain the right to seek adjudication in small claims.  They are not bound to.  There also isn't language favoring small claims over arbitration.  It merely states small claims is an option to arbitration.

I agree.

3 hours ago, LaneBlane said:

If I file a claim with JAMS, wouldn't I be considered the party seeking adjudication?  Likewise, wouldn't it be my decision to choose arbitration over small claims?

Perhaps.  I suppose it might depend upon whether or not you have your own claim(s).  Otherwise, you're simply requesting that the plaintiff's claim be resolved in another forum.

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2 hours ago, BV80 said:

Could the lawsuit have originally been filed in small claims?

I agree.

Perhaps.  I suppose it might depend upon whether or not you have your own claim(s).  Otherwise, you're simply requesting that the plaintiff's claim be resolved in another forum.

The lawsuit was not filed in small claims.  They served me with a civil complaint that was later filed in civil court.

I've thought about whether or not a plaintiff can be seen as waiving their right to file in small claims if they ignored the arbitration agreement and filed in civil court.  There is nothing in the contract that says a party waives their right to small claims under any circumstance.  Therefore, I don't see a grounds in the contract to oppose them if they do file in small claims.

If the judge grants my MTC Arbitration, or if he stays the case pending arbitration, the court would be issuing a ruling to move this to arbitration.  In this instance, I can see how I could possibly argue that the plaintiff chose their path and should have to abide by the ruling of the court.  Because they ignored the terms of the arbitration agreement by filing in civil court, they shouldn't be able to choose 'Plan B' because 'Plan A' didn't result in the outcome they wanted.

You're right that my JAMS claim would be requesting that the plaintiff resolve their claim in arbitration.  If I did have my own claim, it would be for attorney's fees and other fees I will have incurred as a result of the plaintiff breaching the arbitration agreement in the contract by filing in civil court.  I may also be able to prove some FCRA violations on the plaintiff's part.

My contract says all notices related to the agreement must be made in writing to a particular address.  One of my affirmative defenses is lack of standing.  Because I'm questioning the plaintiff's ownership of the account, ignoring this part of the contract makes it feel as though I'm somehow accepting the plaintiff's claim of ownership.  Is this a non-issue?

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In this case, the small claims language is not ambiguous so they had the option of small claims court. However, most JDB attorneys in Minnesota do not use small claims court unless the claim is below $500 because that requires paying the court fees and filing in court up front rather than simply sending out the summons and complaint without filing in court and paying the fees and hoping that the defendant does not realize they are being sued and getting a default judgement. In this case, the minute the JDB attorney saw the defendant obtain an attorney, they immediately filed which might make this easier in the long wrong because it shows the plaintiffs intention to not use small claims. Had the pocket docket process worked its way through, the plaintiff might have turned to small claims once they realized the intentions of the defendant. However, the defendant could have still argued that they made their choice. In any case, the argument is that as the writers of the contract, they knew the clauses contained in it and they knew that they had a choice of direction to take to resolve this. They chose a direction that they thought was most expedient to them and now that the process is not working as they hoped, it would be prejudicial to the defendant for the plaintiff to backtrack and change their decision when they knew there was a possibility, however remote, that this could happen. With arbitration now, it should be making the JDBs think twice about using pocket docket in claims that could be brought to small claims but apparently not yet. They are getting too many defaults to worry about the process, even with the state's rule changes to limit the abuse.

As for lack of standing, you can still bring that up in the arbitration as the arbiter would then have to decide whether they should be there or not based on the evidence presented. The truth of arbitration is that you are not trying to win it outright however. What you are trying to do is make the JDB realize that they will spend tons of money they cannot get back from you in order to collect on this and by that, the JDB gives up. They only paid about $500 (if that) for this debt and are looking for a windfall. If they have to spend another $5000 - $6000 trying to collect, there goes their profit.

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7 hours ago, LaneBlane said:

The lawsuit was not filed in small claims.  They served me with a civil complaint that was later filed in civil cour

I wasn't clear.  Sorry about that.   Based upon the amount their claiming, could they have filed in small claims if they had wanted to do so?  

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2 hours ago, WhoCares1000 said:

In this case, the small claims language is not ambiguous so they had the option of small claims court. However, most JDB attorneys in Minnesota do not use small claims court unless the claim is below $500 because that requires paying the court fees and filing in court up front rather than simply sending out the summons and complaint without filing in court and paying the fees and hoping that the defendant does not realize they are being sued and getting a default judgement. In this case, the minute the JDB attorney saw the defendant obtain an attorney, they immediately filed which might make this easier in the long wrong because it shows the plaintiffs intention to not use small claims. Had the pocket docket process worked its way through, the plaintiff might have turned to small claims once they realized the intentions of the defendant. However, the defendant could have still argued that they made their choice. In any case, the argument is that as the writers of the contract, they knew the clauses contained in it and they knew that they had a choice of direction to take to resolve this. They chose a direction that they thought was most expedient to them and now that the process is not working as they hoped, it would be prejudicial to the defendant for the plaintiff to backtrack and change their decision when they knew there was a possibility, however remote, that this could happen. With arbitration now, it should be making the JDBs think twice about using pocket docket in claims that could be brought to small claims but apparently not yet. They are getting too many defaults to worry about the process, even with the state's rule changes to limit the abuse.

Okey dokey.

Well, if they think they can avoid an order to arbitrate (assuming the judge grants it) by dismissing and filing in small claims, I think they're in for a surprise.  Their actions, the agreement, and the judge's order would not support them.

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1 hour ago, BV80 said:

I wasn't clear.  Sorry about that.   Based upon the amount their claiming, could they have filed in small claims if they had wanted to do so?  

 

The small claims limit is $15,000 ($4,000 if the claim involves a consumer credit transaction.)  Because my loans were for business purposes, and the contract specifically states the funds are to be used for business purposes, Minnesota Statutes does not recognize it as a consumer credit transaction.  Therefore, $15,000 is the limit.  They are seeking roughly $7,000.

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4 hours ago, WhoCares1000 said:
In this case, the small claims language is not ambiguous so they had the option of small claims court. However, most JDB attorneys in Minnesota do not use small claims court unless the claim is below $500 because that requires paying the court fees and filing in court up front rather than simply sending out the summons and complaint without filing in court and paying the fees and hoping that the defendant does not realize they are being sued and getting a default judgement. In this case, the minute the JDB attorney saw the defendant obtain an attorney, they immediately filed which might make this easier in the long wrong because it shows the plaintiffs intention to not use small claims. Had the pocket docket process worked its way through, the plaintiff might have turned to small claims once they realized the intentions of the defendant. However, the defendant could have still argued that they made their choice. In any case, the argument is that as the writers of the contract, they knew the clauses contained in it and they knew that they had a choice of direction to take to resolve this. They chose a direction that they thought was most expedient to them and now that the process is not working as they hoped, it would be prejudicial to the defendant for the plaintiff to backtrack and change their decision when they knew there was a possibility, however remote, that this could happen. With arbitration now, it should be making the JDBs think twice about using pocket docket in claims that could be brought to small claims but apparently not yet. They are getting too many defaults to worry about the process, even with the state's rule changes to limit the abuse.


As for lack of standing, you can still bring that up in the arbitration as the arbiter would then have to decide whether they should be there or not based on the evidence presented. The truth of arbitration is that you are not trying to win it outright however. What you are trying to do is make the JDB realize that they will spend tons of money they cannot get back from you in order to collect on this and by that, the JDB gives up. They only paid about $500 (if that) for this debt and are looking for a windfall. If they have to spend another $5000 - $6000 trying to collect, there goes their profit.

 

Because I've file a MTC Arbitration, the judge will need to make a decision on this.  Whether the Court grants my MTC or stays the complaint pending arbitration, I'm assuming this will be an "order" of the court.

If the plaintiff chose to file in civil court, which led to the court ordering that the matter go to arbitration, it would seem the plaintiff would not be able to start over and file in small claims.  If they pulled the trigger on civil court, they should be bound to comply with that court's order.

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2 hours ago, BV80 said:

Okey dokey.

Well, if they think they can avoid an order to arbitrate (assuming the judge grants it) by dismissing and filing in small claims, I think they're in for a surprise.  Their actions, the agreement, and the judge's order would not support them.

This seems to mirror what I wrote in my last post.   The plaintiff made the decision to file in civil court.  If the judge grants my MTC, they would need to follow the judge's order.  Otherwise, it would be like starting from scratch because they weren't happy with the outcome.

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13 minutes ago, LaneBlane said:

This seems to mirror what I wrote in my last post.   The plaintiff made the decision to file in civil court.  If the judge grants my MTC, they would need to follow the judge's order.  Otherwise, it would be like starting from scratch because they weren't happy with the outcome.

First, let's look at the glass as half full.  The judge could grant your MTC and the plaintiff goes away.

On the other hand, let's say the judge grants your MTC, the plaintiff dismisses, and refiles in small claims.  My argument would be:

1.  The plaintiff had the opportunity to originally file in small claims but chose not to do so.

2.  The language in the agreement allows for adjudication in small claims but does NOT prohibit arbitration of matters filed in that court.

Think about this: In the event that the judge grants your MTC, you could pay your fee with JAMS.  The plaintiff does not pay its fees and JAMS dismisses.  Then the plaintiff refiles in small claims.  You have an argument supporting a claim that the plaintiff never intended to honor the arbitration provision of the agreement.

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1 hour ago, BV80 said:

First, let's look at the glass as half full.  The judge could grant your MTC and the plaintiff goes away.

On the other hand, let's say the judge grants your MTC, the plaintiff dismisses, and refiles in small claims.  My argument would be:

1.  The plaintiff had the opportunity to originally file in small claims but chose not to do so.

2.  The language in the agreement allows for adjudication in small claims but does NOT prohibit arbitration of matters filed in that court.

Think about this: In the event that the judge grants your MTC, you could pay your fee with JAMS.  The plaintiff does not pay its fees and JAMS dismisses.  Then the plaintiff refiles in small claims.  You have an argument supporting a claim that the plaintiff never intended to honor the arbitration provision of the agreement.

 

I understand what you're saying about showing the plaintiff never intended to honor the arbitration agreement.

There are a few possible scenarios that can happen here.  I just need to be ready for each of them.

  1. My MTC is denied and I need to file an appeal.  (I think the chance is slim, but I should be prepared.)
  2. MTC is granted and I immediately file with JAMS and pay my fee.
  3. The judge stays the complaint pending arbitration and I immediately file with JAMS and pay my fee.
  4. The plaintiff dismisses, files in small claims, and I file an answer in opposition.
  5. The plaintiff files in small claims after my MTC is granted or a stay is ordered pending arbitration.  In those instances I can file an answer in opposition, include a copy of the court's order, and include a copy of the case filed with JAMS.

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Here is why the entire small claims issue is moot:  Once the court grants your MTC, anything other than arbitrating the case completely or settling the case would be a violation of that court's order.  The Plaintiff could not refuse to participate in JAMS or ask to dismiss the JAMS case without my immediately filing a motion for sanctions with the court due to the Plaintiff refusing to comply with the court's MTC order.

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Basically, put it another way. If they had filed in small claims and won, do you think a judge would allow you to appeal to civil court (a de novo trial) and they demand arbitration because it is not small claims anymore? Probably not. If you are not allowed to change the process because it is not going the way you want it to, why should they be allowed?

I, as well as others, think that the JDB chose their path when they chose to use pocket docket. They are now forced down that path as the time to have done down the small claims court path has past. They might try to claim that in their opposition but I would hold fast that this is the path they chose so now they have to go down it according to the contract.

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On 10/1/2017 at 9:26 AM, fisthardcheese said:

Here is why the entire small claims issue is moot:  Once the court grants your MTC, anything other than arbitrating the case completely or settling the case would be a violation of that court's order.  The Plaintiff could not refuse to participate in JAMS or ask to dismiss the JAMS case without my immediately filing a motion for sanctions with the court due to the Plaintiff refusing to comply with the court's MTC order.

Before the judge rules on the MTC arbitration, can the Plaintiff dismiss their complaint?  This is one scenario where I can see them filing in small claims.

It's hard to simplify things when this involves such a complex process.  At least I'm no longer intimidated by the whole thing anymore.

Thanks for your continued help.

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I have my responses to the Request for Admissions and the Interrogatories and Request for Production of Documents ready to go.  I just wanted to get some feedback on the objection I'm using for each question and request.

Defendant objects to Plaintiff's Request No. ##.  Arbitration has been elected, and a jurisdictional motion is before the Court.  Scope of discovery is to be determined by the arbitration forum.  Defendant reserve the right to respond after hearing on Motion to Compel Arbitration.

Questions:

  1. Their first Request for Admissions asks me to admit that I'm the owner of my business.  Because this question is so basic, should I submit an answer without an objection?  I don't want to do anything that will invalidate my objection(s).
     
  2. The first interrogatory asks me to identify all persons answering or assisting in answering the interrogatories.  I thought I should answer this without objection because I need to identify myself as the sole person responding.

I need to serve my responses by mail tomorrow (Thursday 10/5).

My thanks to everyone who has been helping me through this maze.  I appreciate your time and your input.

 

 

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An issue just came to mind a few moments ago that could be a problem.

Because the loan in question was a business loan, and the funds were to be used for business purposes, it seems I would not qualify for consumer arbitration and the low fees that come with it.

My contract does read, "No matter which party initiates the arbitration, we will advance or reimburse filing fees and other costs or fees of arbitration. Each party will initially be responsible for its own attorneys’, experts’ and witness fees and related costs and expenses."

Is arbitration still the right path for me to pursue? 

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ELECTRONIC SIGNATURES

The bottom of my loan agreements read, "Electronic Signature of Owner: You acknowledge and agree that any electronic or digital signature provided by telephone, on any application or other document signed in connection with your account represents your signature on this Agreement."

I did some research on electronic signatures tonight and found a Motion to Dismiss prepared by an attorney in a recent contracts case.  One point they made in their motion is the fact that the contract the plaintiff attached as an exhibit did not include any signature pages or any indication of any e-signatures or authentication codes verifying e-signatures exist.

In my case, the plaintiff also provided me with copies of loan agreements that had no indication of a signature (electronic, digital, or otherwise). 

Under the ESIGN act (https://www.docusign.com/learn/esign-act-ueta) there are four major requirements that must be met for an e-signature to be valid under US law.  Two of these requirements are:

  1. Association of signature with the record – In order to qualify as an electronic signature under the ESIGN Act and UETA, the system used to capture the transaction must keep an associated record that reflects the process by which the signature was created, or generate a textual or graphic statement (which is added to the signed record) proving that it was executed with an electronic signature.
     
  2. Record retention – U.S. laws on eSignatures and electronic transactions require that electronic signature records be capable of retention and accurate reproduction for reference by all parties or persons entitled to retain the contract or record.

I have no idea if the plaintiff, a JDB, will be able to obtain copies of loan agreements from the OC that comply with the ESIGN act.  If they can't, they have nothing more than unsigned contracts.

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I've been following a case that was brought by the same JDB/OC against someone out-of-state.  The Defendant filed a Motion to Dismiss that listed a few defenses, including lack of standing and the absence of any markers on their contracts showing an e-signature exists.  Their Motion to Dismiss was granted today.

The hearing for my MTC Arbitration is next week.  I'm coming prepared with case law and will be ready if the Plaintiff argues I waited to long to compel arbitration.  I haven't received anything from the Plaintiff as far as opposition goes.  I need to check with the court tomorrow to see if anything has been filed.

Tonight I went through all of my loan contracts and created a spreadsheet that lists the terms of each loan.  When I compared these to my statement and running balance on the loans, I discovered they overcharged me by roughly $1,700 in interest/fees.  I also have receipts for some payments that don't appear on the statement they provided.  Every little discrepancy counts.

 

 

 

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Keep all of that because it will be needed either in arbitration or if the judge denies arbitration as you can then use that as a basis to argue against their MSJ as it gives you a reason this needs to go to trial.

As for the case you are watching, was that case filed in Minnesota or elsewhere? If in Minnesota, I am surprised lack of jurisdiction was not use. If in a other state, realize that each state has different rules and in some cases, something that was not acceptable in another state might be acceptable in Minnesota. You really need to find a Minnesota case. It is tough because most of the time, people either do not answer, answer ineffectively, or the case is dismissed by the plaintiff if the defendant fights too hard.

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10 hours ago, LaneBlane said:

I've been following a case that was brought by the same JDB/OC against someone out-of-state.

What do you mean "against someone out of state"?   Do you mean the lawsuit was filed in a state other than Minnesota?

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4 hours ago, BV80 said:

What do you mean "against someone out of state"?   Do you mean the lawsuit was filed in a state other than Minnesota?

The lawsuit against me is in Minnesota.  When I researched the JDB suing me, I found another case they filed against a different defendant in a different state.  That defendant's attorney filed a motion to dismiss that was granted.  Even though it involves a lawsuit in another state, their MTD contained a lot of useful information that included the fact that the loan agreements provided to them by the JDB did not comply with the ESIGN Act.  Based on other things in their MTD, I went through the agreements the JDB provided to me and found discrepancies with the dates on my documents.  They're also unsigned with no reference to the existence of an e-signature.

Another issue involves the bill of sale from the OC to the JDB.  The bill of sale involving the case out of state was purportedly signed by the same person who signed the bill of sale in my case.  However, the signatures are entirely different.  Nothing is notarized and there is no affidavit

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9 hours ago, WhoCares1000 said:

Keep all of that because it will be needed either in arbitration or if the judge denies arbitration as you can then use that as a basis to argue against their MSJ as it gives you a reason this needs to go to trial.

As for the case you are watching, was that case filed in Minnesota or elsewhere? If in Minnesota, I am surprised lack of jurisdiction was not use. If in a other state, realize that each state has different rules and in some cases, something that was not acceptable in another state might be acceptable in Minnesota. You really need to find a Minnesota case. It is tough because most of the time, people either do not answer, answer ineffectively, or the case is dismissed by the plaintiff if the defendant fights too hard.

The case I was referring to was filed against a different defendant in a different state, outside Minnesota.  The plaintiff is the same and the case involves the same OC.  I haven't been able to find any cases in Minnesota.  They're not a large JDB like Midland.  (Read more in my previous post).

I went to the court house this afternoon to see if anything has been filed  by the plaintiff in response to my Motion to Compel Arbitration and Notice of Hearing.  They've been radio silent on their end.

I was hoping to receive something from them to let me know what their opposition to my MTC Arbitration will be.  I'm prepared for 1) They are not bound by the arbitration agreement, 2) I waited too long to compel arbitration.  Can you think of anything else I should anticipate?

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Check the rules of civil procedure and see if they are required to answer the MTC prior to the court date. If they are not required to answer it, they can make their opposition case to the judge on the day the motion is heard.

As for the other case, you have to follow MN rules. For example, when it comes to foreclosures, MN allows MEIRS filings to be used in the court even though other states have found MEIRS to be totally bogus and will not allow their filings. If this is a small and new JDB, it might be the case that no one ever fought them before in MN. Very few people actually fight and even fewer get to the point where the case is filed on court. That does not mean that the JDB does not have enough evidence to prove their case in MN. You need to do research and figure out how to attack the evidence in MN should the case stay in court.

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50 minutes ago, WhoCares1000 said:

Check the rules of civil procedure and see if they are required to answer the MTC prior to the court date. If they are not required to answer it, they can make their opposition case to the judge on the day the motion is heard.

It doesn't appear they are required to answer the MTC Arbitration.  I've searched through the rules of civil procedure and couldn't find anything.   https://www.revisor.mn.gov/court_rules/rule.php?name=cp-toh

6.04 (below) is the closest thing I found.  It says opposing affidavits may be served not later than one day before the hearing.  (My motion wasn't supported by an affidavit.)  There's also 7.02 which doesn't really touch upon opposition to a motion.

6.04 For Motions; Affidavits

A written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served no later than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court. Such an order may for cause shown be made on ex parte application. When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59.04, opposing affidavits may be served not later than one day before the hearing, unless the court permits them to be served at some other time.

7.02 Motions and Other Documents

(a) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. Motions provided in these rules are motions requiring a written notice to the party and a hearing before the order can be issued unless the particular rule under which the motion is made specifically provides that the motion may be made ex parte. The parties may agree to written submission to the court for decision without oral argument unless the court directs otherwise. Upon the request of a party or upon its own initiative, the court may hear any motion by telephone conference.

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1 hour ago, WhoCares1000 said:

Check the rules of civil procedure and see if they are required to answer the MTC prior to the court date. If they are not required to answer it, they can make their opposition case to the judge on the day the motion is heard.

It looks like I may have a problem.  I forgot to include Columbus Day in my compulation of time which puts me one day short of proper notice of the hearing.  The other side likely knows this and is ready to pounce on my oversight.  This may be why they haven't responded.

If I'm one day off, what is likely to happen?  This law office is two hours away from the court, so I don't know if they'll send someone just to say I gave inadequate notice.  Maybe they can wait for the judge to make a ruling and have it overturned.

This is probably the last thing I needed.

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