Just Me 78631

(TEXAS) BEING SUED BY CROWN ASSESET MANAGEMENT Non- Suited

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12 minutes ago, Just Me 78631 said:

How long do I wait for them to reply to my letter asking them to supply an agreeable date for the MTC?

20180115-162154_p0.jpg

I think @fisthardcheesewould be able to provide some guidance.

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If they haven't responded I would simply pick a date convenient for me and notify the court that after the Plaintiff ignored all communication that you are electing [date/time] and the Plaintiff can be duly notified.  

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On ‎1‎/‎15‎/‎2018 at 5:18 PM, fisthardcheese said:

I agree. At this point, just pick a date.  What's the worst that happens, they ask for a continuance and the date is moved?  No big deal.

I sent another letter, email, and fax as per the court coordinator, with a response deadline to the chosen date by Friday....will keep you guys posted if interested?

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11 minutes ago, Just Me 78631 said:

will keep you guys posted if interested?

Please do - every detail helps. It's such a shame when we drive a thread up to a dozen pages and the OP just vanishes!

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6 hours ago, Goody_Ouchless said:

Please do - every detail helps. It's such a shame when we drive a thread up to a dozen pages and the OP just vanishes!

Yeah, that kinda sucks.

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On 1/17/2018 at 1:49 PM, Goody_Ouchless said:

Please do - every detail helps. It's such a shame when we drive a thread up to a dozen pages and the OP just vanishes!

Exactly.

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Well they refused to respond to another attempt to obtain a agreed order to compel....so now I will submit my order with a date and the court will set it.....lets see what the next move brings.

 

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Well, I finally have a date for a hearing on my motion to compel Contractual Arbitration.....that was an act of congress to get. Now what should I expect?

fisthardcheese?

Somewhere on this board I read a step by step procedure for this type of hearing, I just cannot seem to find it. Court hearing on MTC contractual arbitration is set for March 19th before the judge whom I will see on March 12th in an adoption hearing (termination of a parents rights). 

 

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On 2/23/2018 at 7:14 AM, Just Me 78631 said:

Well, I finally have a date for a hearing on my motion to compel Contractual Arbitration.....that was an act of congress to get. Now what should I expect?

fisthardcheese?

Somewhere on this board I read a step by step procedure for this type of hearing, I just cannot seem to find it. Court hearing on MTC contractual arbitration is set for March 19th before the judge whom I will see on March 12th in an adoption hearing (termination of a parents rights). 

 

OK, you got a hearing on your motion.  That is progress.  I am sure others will advise you shortly. The Cheeseman Cometh! @fisthardcheese

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We have seen these arguments used by plaintiffs:

1) Clause doesn't apply to us (debt buyer)

2) We are in small claims court, and there's an exemption

3) We are suing on account stated so there's no contract

4) Arbitration is too expensive

5) We are already in court, so it's too late for arbitration

#2 can apply if contract has a carve out that specifically defines "small claims" as meaning "anything equivalent to Delaware Justice Court." 

#5 can apply in certain states.

 

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They have not filed any response to your MTC, correct?  Then ANY argument they make in court against your MTC should be met with an objection.  Find your court rule on how long they have to repsond to a motion and have the rule number handy.  You respond to anything they say against arbitration with "objection, Rule XYZ gives the Plaintiff X days to respond to my Motion to Compel, which they did not do. I would ask that my motion be granted as unopposed and that their opposition be ruled untimely".  Put it in your own words.

If the judge overrules your objection and allows them to make their arguments, that's fine.  Just counter with the case law already in your MTC from your state and the Supreme Court.

 

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On 2/25/2018 at 5:34 PM, Goody_Ouchless said:

We have seen these arguments used by plaintiffs:

1) Clause doesn't apply to us (debt buyer)

2) We are in small claims court, and there's an exemption

3) We are suing on account stated so there's no contract

4) Arbitration is too expensive

5) We are already in court, so it's too late for arbitration

#2 can apply if contract has a carve out that specifically defines "small claims" as meaning "anything equivalent to Delaware Justice Court." 

#5 can apply in certain states.

 

Just asked a consumer attorney about #3. “Account stated not breach of contract”. He says “Account stated and Breach of Contract are basically the same thing. What you call it is irrelevant for the most part. What matters is what the cause of action is at its core. A revolving credit card debt is usually presented as account stated simply because the underlying debt arose from a series of transactions and calling each and every one of them a breach would be cumbersome to keep track of.”

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Today I recieved a letter:

 

Re: CROWN Asset Management vs Me

Dear Civil Clerk:

Please find enclosed Plaintiff's Notice on Nonsuit and Order  Granting Nonsuit for filing in the above referenced lawsuit, in regards to ME. Once you have completed filing, please forward to the Court for approval. After review and approval of the same, please return a confirmed copy of the signed Order of the Nonsuit to our offices in the self-addressed stamped envelope.

As always, your professional courtesy is greatly appreciated. Should you have any questions regarding the enclosed, please do not hesitate to contact us.

Sincerly

Rausch, Strum, Iseral, Anderson, & Hornik LLP 

 

So Im guessing this a good thing and it' over?

 

 

 

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I would check your court rules on allowing this.  It is very likely that they are not allowed to drop this case on their own (without your consent) once you have filed an answer and have a pending MTC.  If that is the case, this gives you the opportunity to object to the nonsuit and state that you are willing to stipulate to a dismissal WITH prejudice if they wish to drop the case.

That can give you the final and complete closure to this alleged debt for good.

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1 hour ago, fisthardcheese said:

I would check your court rules on allowing this.  It is very likely that they are not allowed to drop this case on their own (without your consent) once you have filed an answer and have a pending MTC.  If that is the case, this gives you the opportunity to object to the nonsuit and state that you are willing to stipulate to a dismissal WITH prejudice if they wish to drop the case.

That can give you the final and complete closure to this alleged debt for good.

I was wondering about that,  because in this Notice of Non-suit, its states

"Nonsuit of all its claims against me without prejudice."

Pursuant to existing case law, plaintiff has a right to a Nonsuit the moment it makes a timely oral or written request....a Nonsuit is effective as soon as it is filed or requested Hooks v Fourth Ct of Appeals, 808 S.W.2d 56 59 (Tex 1991) a Nonsuit is effective as soon as it is filed or requested from the court. Greenberg v Brookshire, 640 S.W.2d 870 872 (Tex 1982) When the court signs an order granting a nonsuit, it is simply a ministrerial act. Id

A nonsuit nullifies the controversy and renders interlocutory orders in the case moot. In re Bennett, 960 S.W.2d 35, 38 (Tex 1997)

In accordance with the forgoing authority, Plaintiff hereby provides notice of its immediate nonsuit of all claims against Me in the above styled lawsuit without prejudice.

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On 2/25/2018 at 4:05 PM, debtzapper said:

OK, you got a hearing on your motion.  That is progress.  I am sure others will advise you shortly. The Cheeseman Cometh! @fisthardcheese

Thank you,  I now know how to correctly tag someone, because copy/paste looks like I' yelling.

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That's true, a Plaintiff may take a Non-Suit first by right. But cannot take it if there are Pending Motions before the Court that haven't been ruled on. I would object to Plaintiff's Motion as well and demand the Court rule on your MTC.

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The right of a plaintiff to take a non-suit upon his own cause of action was considered of sufficient importance by the legislature to be given express recognition.... t is important that the substance, and not the shadow alone, of the right shall be preserved.... It is only when the defendant, by a counter-claim, seeks some "affirmative relief," that the right of the plaintiff to discontinue the entire cause is forbidden.... The defendant must not only pray for affirmative relief, but he must state facts showing that he has a cause of action....

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Quote

91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion.
(a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.
(b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.
(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).
(d) An amended motion filed in accordance with (b) restarts the time periods in this rule.

English anyone?
 

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1 hour ago, Just Me 78631 said:

91a.5 Effect of Nonsuit or Amendment; Withdrawal of Motion.
(a) The court may not rule on a motion to dismiss if, at least 3 days before the date of the hearing, the respondent files a nonsuit of the challenged cause of action, or the movant files a withdrawal of the motion.
(b) If the respondent amends the challenged cause of action at least 3 days before the date of the hearing, the movant may, before the date of the hearing, file a withdrawal of the motion or an amended motion directed to the amended cause of action.
(c) Except by agreement of the parties, the court must rule on a motion unless it has been withdrawn or the cause of action has been nonsuited in accordance with (a) or (b). In ruling on the motion, the court must not consider a nonsuit or amendment not filed as permitted by paragraphs (a) or (b).
(d) An amended motion filed in accordance with (b) restarts the time periods in this rule.

a.  If the plaintiff files a nonsuit at least 3 days before the hearing of a motion to dismiss or if the defendant withdraws his motion to dismiss at least 3 days before the hearing, the court cannot rule on the motion to dismiss.

b.  The defendant is allowed to withdraw his motion to dismiss or amend his motion if the plaintiff amends his complaint at least 3 days before the hearing.

c.  The court must rule on a motion unless it has been withdrawn or nonsuited.

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3 hours ago, Gasman4571 said:

That's true, a Plaintiff may take a Non-Suit first by right. But cannot take it if there are Pending Motions before the Court that haven't been ruled on. I would object to Plaintiff's Motion as well and demand the Court rule on your MTC.

What would be the purpose of the court ruling on the MTC?  The purpose for filing it was to end the lawsuit. 

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12 minutes ago, BV80 said:

What would be the purpose of the court ruling on the MTC?  The purpose for filing it was to end the lawsuit. 

Exactly! Once again, we see the perfect becoming the enemy of the good.

Has there been one case, ever, where a plaintiff dismissed in the face of arbitration and the debtor was subsequently re-sued on the same debt?

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Just now, Goody_Ouchless said:

Exactly! Once again, we see the perfect becoming the enemy of the good.

Has there been one case, ever, where a plaintiff dismissed in the face of arbitration and the debtor was subsequently re-sued on the same debt?

I don't personally know of a case, Goody.  It wouldn't make sense for the party to sue the consumer again for that same debt considering that party knows that consumer will more than likely seek arbitration.

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