williams4

Being sued Unifund

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57 minutes ago, williams4 said:

Now Unifund has filed a Summery Judgement, stating that AAA closed its case due to lack of payment.  I have not payed the filing fee because I was waiting for Motion to Compel Arbitration to be granted first.  I am writing up my opposition for summary judgement right now.  The Motion to Compel Arbitration hearing is January 28, since they did not show up to the one in November. 

In the Summary Judgement, Unifund states "Plaintiff did not object to the Defendant’s demand for arbitration." 

So after I submit my opposition for Summery Judgement, would it be wise to submit a Motion to Dismiss since in the Summary Judgement they stated that Plaintiff did not object to demand for arbitration?

In your response to summary judgement, I would point out that a hearing was held regarding Defendant's Motion to Compel Arbitration in which the Plaintiff failed to show up for causing this Court to reschedule said hearing and that if Plaintiff had no objection to arbitration, they could have responded to the AAA, the Defendant or This Court, but they failed to do so.  I would point out that the arbitration case can be reopened at any time and it was only closed due to the Plaintiff failing to show up for a scheduled hearing and causing additional delay on this matter.

I would point out that now that Plaintiff has made it clear that they do not object to arbitration, that we need not use up the Court's time and cancel the upcoming hearing and ask that The Court grant Defendant's MTC and Deny Plaintiff's Summary Judgement as irrelevant due to the subject being a matter for arbitration only.

On 11/15/2018 at 11:52 AM, williams4 said:

I don't want to make the judge mad.

Who cares.  He probably gets more frustrated at having to reschedule hearings because someone is too timid to assert their rights.  This is not the judge's case to defend.  YOU must do the work.  This judge did everything he could possibly do to get you to ask for a dismissal or for a directed verdict and you were worried about hurting his feelings?  This is his job.

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@fisthardcheese

Should the OP point out that the plaintiff knows it missed the November hearing on the defendant’s MTC and is aware that the hearing for that motion was rescheduled?  Also, it appears that by filing the MSJ, Plaintiff is attempting to circumvent or deny Defendant’s right to arbitration?

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3 minutes ago, fisthardcheese said:

Who cares.  He probably gets more frustrated at having to reschedule hearings because someone is too timid to assert their rights.  This is not the judge's case to defend.  YOU must do the work.  This judge did everything he could possibly do to get you to ask for a dismissal or for a directed verdict and you were worried about hurting his feelings?  This is his job

I am sure he was frustrated! I have been kicking myself for not knowing to ask to dismiss or make a decision.  Since he was leaning towards dismissing the case instead of compelling arbitration, should I file a motion to dismiss with prejudice so that I don't have to file for arbitration? Or will I need to file for arbitration regardless?  I was unsure if it was dismissed without the judge telling us to arbitrate, if I could wait for them to file arbitration?

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2 minutes ago, BV80 said:

@fisthardcheese

Should the OP point out that the plaintiff knows it missed the November hearing on the defendant’s MTC and is aware that the hearing for that motion was rescheduled?  Also, it appears that by filing the MSJ, Plaintiff is attempting to circumvent or deny Defendant’s right to arbitration?

I was definitely going to point this out in my opposition to summary judgement.  Which I am hoping helps my case because the judge was made for them not showing but wanted to give Unifund the benefit of the doubt thinking an emergency or something came up. I am trying to figure out if Unifund's lawyer realizes that this is a rescheduled hearing.  The way it is written is making it sound like the next hearing is about the debt and not about arbitration.

 

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1 hour ago, BV80 said:

@fisthardcheese

Should the OP point out that the plaintiff knows it missed the November hearing on the defendant’s MTC and is aware that the hearing for that motion was rescheduled?  Also, it appears that by filing the MSJ, Plaintiff is attempting to circumvent or deny Defendant’s right to arbitration?

Yes.  I would point out every flaw and problem this Plaintiff has has up to this point.  The Plaintiff clearly caused a delay and is now attempting further delay and court's time to deal with their improper MSJ.

1 hour ago, williams4 said:

Since he was leaning towards dismissing the case instead of compelling arbitration, should I file a motion to dismiss with prejudice so that I don't have to file for arbitration?

That ship has sailed.  Get the MTC Granted and the dismissal will come soon enough.

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On 12/3/2018 at 12:56 PM, fisthardcheese said:

Not sure what I should do now.  Here is an update of events (sorry it’s so long).

11/30/18 Plaintiff submitted Summary Judgement

12/4/18 Review Hearing was scheduled for 1/7/19

12/5/18 I responded to Summary Judgement pointing out there was still Motion to Compel Arbitration pending and mentioned that since Plaintiff admits in Summary Judgment that they had no objections to arbitration and arbitration can be reopened at any time so my Motion to Compel should be granted, (more detailed but this just sums up what I asked)

12/18/18 Plaintiff responded to my response arguing:   1. Failure to Respond to Requests for Admission Results in the Requests Becoming Admitted. 2. Defendant Admits Liability On All Counts In Plaintiff’s Complaint. 3. Defendant has failed to establish a genuine issue of material fact sufficient to preclude summary disposition.

 

(I responded to admissions before the original Motion to Compel Hearing with “objection, I have demanded private contractual arbitration as the forum for resolution…”)

 

They also stated they were unaware of the hearing for Motion to Compel on 11/14/18 and this is why they didn’t appear. And they also stated that the AAA file was closed due to me not paying  $200 filing fee.  And they are asking the Summary Judgment be granted.

 

12/18/19 Notice of Hearing Comes now the Court and gives notice to the parties that a hearing onrall pending matters has been set for January 28, 2019, at 1:00 p.m. Parties may appear by telephone if prior arrangements are made with the Court Reporter.

 

My question is, Should I go ahead and pay the $200 filing fee with AAA before the hearing so I can come to court on 1/28/19 showing the AAA case is now open? Or should I still wait to pay the filing fee for when the Arbitration is granted?

 

 

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6 hours ago, williams4 said:

My question is, Should I go ahead and pay the $200 filing fee with AAA before the hearing so I can come to court on 1/28/19 showing the AAA case is now open? Or should I still wait to pay the filing fee for when the Arbitration is granted?

They really make a mess of things when they move for summary judgment when there is a pending MTC. If I'm not mistaken, the FAA requires a stay of proceedings when a party files a MTC. I would argue that filing an MSJ violates that stay and it should be denied on those grounds. At the very least, a ruling on the MSJ must be postponed until the MTC is ruled on, and arbitration has concluded, if applicable. 

Also, I'd be pointing out that their claim that you failed to respond to their request for admissions is false. 

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8 minutes ago, Harry Seaward said:

Also, I'd be pointing out that their claim that you failed to respond to their request for admissions is false. 

They are claiming "Failure to Respond to requests for admission results in the request becoming admitted" is because AAA sent a letter on on 10/2/18 saying they closed the file until $200 filing fee is paid.  So they are saying since they sent the request for admissions on 10/25/18, I couldn't object. Even though AAA closing the file has nothing to do with my motion to compel arbitration with the court.  Under Rule 36 (a), my objection was in the 30 days and shouldn't result in admitting. 

I honestly think they knew about the original hearing for MTC and when they saw the next hearing date was for 1/28/19, they assumed that was not for the MTC.  They claim they were unaware of the hearing.  My motion was filed on 9/11, hearing was 33 days later.  They filed the Summary Judgment 80 days after I filed my MTC.  So even if they really were not notified of the hearing, they should have called the court or checked the website to see what the status of the MTC was.  Motions simply do not just disappear.  It would have either been granted, denied or a hearing scheduled in that amount of time.  I am definitely going to argue that their negligence should not interfere with me having a hearing for my MTC.

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See if you have any state or local statutes specific to arbitration proceedings. Arizona has one that says the case is automatically stayed immediately upon the filing of a MTC, and remains stayed until the court denies the MTC, or arbitration concludes.

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I apologize for my ignorance on legal terms.  But I found this in Indiana Code.  Would me filing MTC be considered an application for an order? Or is this not what this is referring to?

(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application for an order for arbitration has been made under this section (or IC 34-4-2-3 before its repeal), or, if the issue is severable, the stay may be with respect to the issue only. When the application is made in such an action or proceeding, the order for arbitration must include such a stay.

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That's exactly it! It's nearly word-for-word identical to the Arizona statute. 

Yes, a MTC is the "application" that the statue is taking about. 

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9 hours ago, Harry Seaward said:

That's exactly it! It's nearly word-for-word identical to the Arizona statute. 

Yes, a MTC is the "application" that the statue is taking about. 

Ok, thank you so much! When I was laying it bed last night it occurred to me, I think Plaintiff thinks the AAA is part of the court.  In her answer she said something about how they didn't object to Arbitration but AAA sent a letter on 10/2/18 saying they closed the file.  Then in the Summary Judgment she was saying how since I didn't "respond" to admissions after AAA closed the file, that since I "objected", it's admitting guilt.  Which made no sense at all.  But now reading through the Summary Judgment with the mindset of AAA being part of the court, it all makes sense.  I was so confused with the Summary Judgement because it stated there was no arguments pending, which we were still waiting for the MTC hearing?

 

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You're giving them way too much benefit of the doubt. Unifund knows that AAA is not part of the Court. I think the message they were trying to send to the court is that they would not be opposed to court sponsored mediation. Everything else was just smoke and mirrors. In their motion for summary judgment, did they cite any case law or Indiana statutes pertaining to arbitration?

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No they did not.  Here are the paragraphs referring to arbitration.

Defendant answered the Complaint denying the operative allegations therein and alleging the Court lacked jurisdiction because of an arbitration clause in her agreement with the Original Creditor.   Defendant further moved to compel arbitration. Plaintiff did not object to the Defendant's demand for arbitration. However, on October 2, 2018, Plaintiff, by and through counsel received notification from the American Arbitration Association stating they would not proceed with administration because Defendant failed to submit required filing fee.

Thereafter, Plaintiff submitted certain discovery requests to Defendant on October 25, 2018 and filed notice with the court.  In response to Plaintiff's discovery, on 11-6-18, defendant objected to the discovery, again claiming she had demanding arbitration.

 

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34 minutes ago, Harry Seaward said:

You're giving them way too much benefit of the doubt. Unifund knows that AAA is not part of the Court. I think the message they were trying to send to the court is that they would not be opposed to court sponsored mediation. Everything else was just smoke and mirrors. In their motion for summary judgment, did they cite any case law or Indiana statutes pertaining to arbitration?

Also, I just reread all the earlier posts on this thread. I was under the impression that I wait to pay the $200 filing fee with AAA until after judge grants my MTC.  But now I see where you said wait to file with AAA until I am served.  So should I go ahead and pay the $200 AAA fee now to prevent them from trying to have court sponsored mediation?  I did open a file with AAA when I filed my MTC but just haven't paid the filing fee.

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If you look at subsection a.) of the statute that you quoted earlier, it should give info on how to ask for arbitration. I doubt there is anything in there about paying the initial arb fee, and I know the FAA doesn't provide the failure to pay the fee as grounds for a court to deny a MTC.

Because they are arguing failure to pay the fee as grounds to grant their MSJ, I myself would probably tell the court that I'll gladly pay the fee within 10 days on the condition that the court orders plaintiff to reimburse me if they don't pay their fee. 

You might just want to pay the fee to be safe, but even that is no guarantee the court will grant your MTC. In which case you'd have to appeal to get it corrected by a higher court. 

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There is a review hearing (court only, no hearing) on January 7 and another hearing January 28 for all pending matters (MTC, Summary Judgement).  I have already sent my opposition to Summary Judgement and Plaintiff has also sent response to my opposition.  There were more things I wanted to point out, such as the Indiana Law stating the litigation should be stayed on application of MTC and stuff.  Should I file this with the court before the court only review hearing on January 7, or should I just wait for our actual hearing on January 28 to state all of this?

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I was going to call the Clerk and ask what a review hearing entails.  My biggest fear is the court granting the Summary Judgement without me being able to argue the points that came to mind after I filed my opposition.  I know the Clerk won't give me advise on what I should do, but I am hoping they will be able to tell me if it's possible the court will make a decision at the review hearing.

 

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5 hours ago, williams4 said:

Should I file this with the court before the court only review hearing on January 7, or should I just wait for our actual hearing on January 28 to state all of this?

Most of the time the rules provide for a motion, a response by the other party and a reply by the filing party. Otherwise, people (windbag lawyers) would keep going back and forth forever. 

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1 hour ago, Harry Seaward said:

Most of the time the rules provide for a motion, a response by the other party and a reply by the filing party. Otherwise, people (windbag lawyers) would keep going back and forth forever. 

This answers my question.  Thanks!

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On 12/20/2018 at 11:22 AM, williams4 said:

Defendant answered the Complaint denying the operative allegations therein and alleging the Court lacked jurisdiction because of an arbitration clause in her agreement with the Original Creditor.   Defendant further moved to compel arbitration. Plaintiff did not object to the Defendant's demand for arbitration. However, on October 2, 2018, Plaintiff, by and through counsel received notification from the American Arbitration Association stating they would not proceed with administration because Defendant failed to submit required filing fee.

Thereafter, Plaintiff submitted certain discovery requests to Defendant on October 25, 2018 and filed notice with the court.  In response to Plaintiff's discovery, on 11-6-18, defendant objected to the discovery, again claiming she had demanding arbitration.

This right here is what I would have tore into in my Response to their summary judgement.  They are trying to play games in order to circumvent arbitration.  There is no requirement for you to pay any filing fee until your MTC is granted and the court ORDERS arbitration.  But the court COULD NOT order arbitration because Plaintiff conveniently 'forgot' to show up to the MTC hearing.  The hearing was rescheduled and that delay (again, caused by the Plaintiff) was long enough for AAA to close the file.  And now the Plaintiff is attempting to use this fact to say that arbitration is now a dead issue and they can continue with their court case.  This is patently false. It matters NOT what AAA has done so far, the only thing that matters is that you have a contractual and legal right to arbitration and that the court should grant arbitration.  Once Ordered, AAA will reopen the case and you can continue with the filing.

This is the point I would make sure to hammer over and over at your hearing until the judge grants the MTC.

As a side note to others reading this:  This is the biggest reason I always say to never file the arbitration case until your MTC is granted.  It makes a mess of things.  There is only ONE scenario where filing in AAA or JAMS early is helpful and that is ONLY if you have a Citibank card agreement and have not yet been sued.  ANY OTHER situation should be held until the MTC is granted. 

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19 hours ago, fisthardcheese said:

This right here is what I would have tore into in my Response to their summary judgement.  They are trying to play games in order to circumvent arbitration.  There is no requirement for you to pay any filing fee until your MTC is granted and the court ORDERS arbitration.  But the court COULD NOT order arbitration because Plaintiff conveniently 'forgot' to show up to the MTC hearing.  The hearing was rescheduled and that delay (again, caused by the Plaintiff) was long enough for AAA to close the file.  And now the Plaintiff is attempting to use this fact to say that arbitration is now a dead issue and they can continue with their court case.  This is patently false. It matters NOT what AAA has done so far, the only thing that matters is that you have a contractual and legal right to arbitration and that the court should grant arbitration.  Once Ordered, AAA will reopen the case and you can continue with the filing.

This is the point I would make sure to hammer over and over at your hearing until the judge grants the MTC.

As a side note to others reading this:  This is the biggest reason I always say to never file the arbitration case until your MTC is granted.  It makes a mess of things.  There is only ONE scenario where filing in AAA or JAMS early is helpful and that is ONLY if you have a Citibank card agreement and have not yet been sued.  ANY OTHER situation should be held until the MTC is granted. 

I definitely made a mess of things by filing the papers with AAA when I submitted my MTC.  If you were in the situation I am in now, would you go ahead and pay the $200 filing fee with AAA to get the case opened before the January 28 hearing? My fear is the plaintiff arguing that I didn't pay the filing fee and still didn't pay it after I knew they didn't object then somehow convincing the judge that they think I won't pay it? There is also a review hearing "court only" on January 7.  I was thinking about waiting until after the January 7th court only hearing to see what comes from that then paying the $200 filing fee so I can go to court on the 28th arguing my case and showing that the case is opened. 

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On 1/2/2019 at 8:20 AM, williams4 said:
 

I definitely made a mess of things by filing the papers with AAA when I submitted my MTC.  If you were in the situation I am in now, would you go ahead and pay the $200 filing fee with AAA to get the case opened before the January 28 hearing? My fear is the plaintiff arguing that I didn't pay the filing fee and still didn't pay it after I knew they didn't object then somehow convincing the judge that they think I won't pay it? There is also a review hearing "court only" on January 7.  I was thinking about waiting until after the January 7th court only hearing to see what comes from that then paying the $200 filing fee so I can go to court on the 28th arguing my case and showing that the case is opened. 

I would not pay until I have a granted MTC.  That's just me. You can do it either way.  However, my counter to any nonsense about me not paying (as if that is relevant in any way) is that why would I pay the filing fee when this action is still in court due to the Plaintiff failing to show up at the first hearing and not responding in any way to the arbtration filing NOR my filing of the motion to compel in court.  I would expand on it by saying I am prepared to reopen the AAA case and pay the filing fee today immediately upon your honor granting my motion to compel.

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UPDATE:

Just got back from my hearing on my Motion to Compel Arbitration and Plaintiff's Motion for Summary Judgement.  Judge granted my MTC and gave me 60 days to pay the $200 filing fee.  We have another hearing in April and as long as I have paid the $200 filing fee, the judge is closing the case.  Judge said, "I am asking this as a compliment, are you an attorney by trade and if not what trade did you study?" Me: (laughed) and said no I am not.  I have an Associates in Accounting but I stay home and raise my kids.   @fisthardcheese @Harry Seaward and everyone else on this forum, I owe a big shout out to you for receiving this compliment!  Definitely couldn't have done ANY of this without everyone's help on here! I will be forever thankful for all the help from everyone here! 

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