Midland lawsuit HELP!

[Mloske]

Hey guys! Need help again, this is my 3rd lawsuit from midland in the past 12 months. I beat them in the two previous lawsuits and both were removed from my credit report. However, this last one has thrown me for a loop. I did exactly what I did with the last two, granted my MTC and stay pending arbitration, submitted my documents from JAMS proving that I have started the arbitration, the next day my case was closed, dismissed withOUT prejudice. I am confused to what just happened. I was granted a stay, JAMS hasn’t received payment from the attorney, my arbitration case is open, so why was my cases closed? I am not happy with the order and want it dismissed with prejudice . What I read on the JAMS site is that if they don’t pay then they close the case. Then what? I am attaching my case docket of the events as well as the orders... any suggestions would be much appreciated! @fisthardcheese @Brotherskeeper

[Mloske]

@debtzapper any suggestions?

[Brotherskeeper]

@Mloske Congrats on the dismissal! You are 3 for 3! @fisthardcheese may have a suggestion as to whether you can leverage this to remove Midland's reporting to the CRAs. Here is the Ohio RCP that governs voluntary dismissal:

RULE 41. Dismissal of Actions
(A) Voluntary dismissal: effect thereof.
(1) By plaintiff; by stipulation. Subject to the provisions of Civ. R. 23(E), Civ. R. 23.1, and Civ. R. 66, a plaintiff, without order of court, may dismiss all claims asserted by that plaintiff against a defendant by doing either of the following:
(a) filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by that defendant;
(b) filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.
(2) By order of court. Except as provided in division (A)(1) of this rule, a claim shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff's motion to dismiss, a claim shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under division (A)(2) of this rule is without prejudice.
(B) Involuntary dismissal: effect thereof.
(1) Failure to prosecute. Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim.
(2) Dismissal; non-jury action. After the plaintiff, in an action tried by the court without a jury, has completed the presentation of the plaintiff’s evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence. If the court renders judgment on the merits against the plaintiff, the court shall make findings as provided in Civ. R. 52 if requested to do so by any party.
(3) Adjudication on the merits; exception. A dismissal under division (B) of this rule and any dismissal not provided for in this rule, except as provided in division (B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies.
(4) Failure other than on the merits. A dismissal for either of the following reasons shall operate as a failure otherwise than on the merits:
(a) lack of jurisdiction over the person or the subject matter;
(b) failure to join a party under Civ. R. 19 or Civ. R. 19.1.
(C) Dismissal of counterclaim, cross-claim, or third-party claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim. A voluntary dismissal by the claimant alone pursuant to division (A)(1) of this rule shall be made before the commencement of trial.
(D) Costs of previously dismissed action. If a plaintiff who has once dismissed a claim in any court commences an action based upon or including the same claim against the same defendant, the court may make such order for the payment of costs of the claim previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order.

[Effective: July 1, 1970; amended effective July 1, 1971; July 1, 1972; July 1, 2001.] Staff Note (July 1, 2001 Amendment)
Civil Rule 41 Dismissal of Actions
This rule was amended (1) to reflect more precisely its interpretation by the Supreme Court in Denham v. City of New Carlisle, 86 Ohio St. 3d 594 (1999); (2) to conform Civ. R. 41(D) with Civ. R. 41(A) as amended; and (3) to reflect that Civ. R. 23.1 provides that a shareholder derivative action “shall not be dismissed or compromised without the approval of the court.” In divisions (B) and (C), masculine references were changed to gender-neutral language, the style used for rule references was changed, and other grammatical changes were made. No substantive amendment to divisions (B) and (C) was intended.

[Clydesmom]

6 hours ago, Mloske said:

I am confused to what just happened.

They walked away.  Midland is 0-3 against you. 

6 hours ago, Mloske said:

JAMS hasn’t received payment from the attorney, my arbitration case is open, so why was my cases closed?

Because Midland dismissed the suit.  Once they dismiss they are no longer subject to the order to arbitrate.

6 hours ago, Mloske said:

I am not happy with the order and want it dismissed with prejudice .

I understand that but you don't really have a choice. Under OH law they can do exactly what they did and do not need your consent to do it.  Have faith though. To date I don't believe there is a case of a JDB dismissing without prejudice after being ordered to arbitrate and then re-filing.  Keep a copy of the order and should you become the first you can raise that issue as a defense and force their hand again.

6 hours ago, Mloske said:

What I read on the JAMS site is that if they don’t pay then they close the case. Then what?

Move on with life.  Nothing else to do but celebrate the win.

 

[Mloske]

@Clydesmom  Midland didn’t dismiss the suit... the Judge did.. as you see in the documents in my post

[Mloske]

@Brotherskeeper where do you see the voluntary dismissal? 

[Mloske]

Submitted these and the next day Judge dismissed the cause because arbitration was commenced. My granted MTC stay arbitration, I assume would mean stay until arbitration is completed or until midland gives in... neither party motioned for a dismissal..  

[Brotherskeeper]

10 minutes ago, Mloske said:

@Brotherskeeper where do you see the voluntary dismissal? 

Unless Midland filed a request that you are unaware of, it looks like the judge did this. Did your MTC arb request dismissal, or in the alternative, a stay pending arb? Some of the templates on this forum title the motion this way.  

32 minutes ago, Brotherskeeper said:

(2) By order of court. Except as provided in division (A)(1) of this rule, a claim shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon that defendant of the plaintiff's motion to dismiss, a claim shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under division (A)(2) of this rule is without prejudice.

 

[Mloske]

@Brotherskeeper I was granted a stay pending arbitration.. I attached a copy of my docket and orders to try and help see how it came to this point

[Mloske]

@Brotherskeeper

[Mloske]

[Brotherskeeper]

It appears to me that the judge dismissed this under rule 41(A)2. Perhaps the judge was doing year-end cleanup of the docket? 

[Mloske]

[Brotherskeeper]

@Mloske The judge's order requires the parties to cooperate to commence said arbitration and provide proof to the court by Nov. 7. Those conditions of the order were satisfied--at least by you--to the judge's satisfaction. Nothing in this order requires the parties to complete arbitration. 

[Mloske]

They haven’t paid their $1500 to JAMS to properly commence arbitration and the suit was dismissed without prejudice.. which seeing that I was granted stay pending arbitration, the order should have been in my favor, not in theirs. They could come back and sue me, not pay JAMS... how can I have a granted motion and then dismissed inappropriately? 

[Mloske]

Pending arbitration... it’s not even properly commenced yet. The order didn’t state pending the commencement of arbitration right? 

[Mloske]

I didn’t have a chance to object, and request dismissed with prejudice. Where are my rights or stool to stand on? They came after me.. I kicked their a$$ and gave them a run for their money.. ordered wasn’t what I wanted... 

[BV80]

10 minutes ago, Mloske said:

They haven’t paid their $1500 to JAMS to properly commence arbitration and the suit was dismissed without prejudice.. which seeing that I was granted stay pending arbitration, the order should have been in my favor, not in theirs. They could come back and sue me, not pay JAMS... how can I have a granted motion and then dismissed inappropriately? 

Have you received notice from JAMS that the other party hasn’t paid the fees?

[Brotherskeeper]

7 minutes ago, Mloske said:

I kicked their a$$ and gave them a run for their money.. ordered wasn’t what I wanted... 

If you reread the judge's order, no mention is made of completing arbitration, only that the parties "cooperate to commence." I don't know whether you were up against the Nov. 7  deadline to comply, but perhaps you should have also included the information of Midland's failure to pay JAMS so that the judge understood only one party was cooperating. 

So how much more work do you want to take on? Midland will not sue you again for this debt. 

[fisthardcheese]

Send the attorney an email stating that you are willing to withdraw your claims in Arbitration in exchange for a full release.  Give them an expiration of this settlement offer being the same date the JAMS payment is due.

They may ignore it.  They may actually agree to the settlement.  Who knows.  It costs and hurts nothing to try.  A signed release of liability is as good as a dismissal with prejudice.

If they ignore it, then let the JAMS case get closed for non payment and be done with it.

[Mloske]

@fisthardcheese @Brotherskeeper @debtzapper 

Update.. emailed my JAMS lady and asked her for an update as well as updated her on the Judge’s order with the current status of arbitration. She replied to my email and stated that arbitration has not been commenced due to the fact the the respondent has not responded to anything. I then called the clerk this morning, explained the situation. She said that I need to write a “letter” to the judge explaining the situation and the emails relevant to my claims...  so here’s my question, anyone have any experience in writing a letter to the judge, telling him he f’d up and that I would like him to remove his order and replace it with dismissed WITH prejudice , or honor my granted motion to stay?!? ?

[nobk4me]

You should be happy with this.  YOU WON.

So what if it was without prejudice?  They won't be back.  In the unlikely event they (or the next JDB) do sue again, then it's rinse and repeat.

The court has washed its hands of the case.  Which is the desired result of the MTC Arb.

Don't get greedy.  Hogs get slaughtered.  Not trying to be harsh here, but it would be a shame to snatch defeat from the jaws of victory.

[Brotherskeeper]

@Mloske  Here's some general info on communicating with the judge via the court rules:

http://www.co.warren.oh.us/commonpleas/GenInfo/communication.pdf

Here's a fill-in form for Notice to the Court that you might modify for your purposes:

http://www.loraincounty.us/platform/cms/clerk-of-courts/2015/Civil/Notice-of-change-of-address.pdf

[Brotherskeeper]

3 minutes ago, nobk4me said:

The court has washed its hands of the case.  Which is the desired result of the MTC Arb.

I agree with nobk4me. 

[Mloske]

@nobk4me thank you for your input. I’m a fighter, I fought and won 2 midland lawsuits... win or lose, I’ll fight for what I want to the end. The judge made an incorrect judgment , the statement made in his order is false. The letters I provided the court state that the arbitration commencement will begin when respondent (midland) pays the $1500 filing fee. So, at that point they are in contempt for not following The Judges orders.. correct? JAMS  lady has been unable to reach them thus far.. my debt is $911, Jams filing fee is $1500, on top of their violations of  FDCPA, I found... benefits outweighed weigh the risks in my opinion... my case was not dismissed properly, the Judge errored in his premature judgment, midland attorney hasn’t responded to anything but a pitty  attempt to throw out my MTC.. you may see it as a win, I disagree.. I see it as “the fight ain’t over yet”! I would love your input on addressing the Judge in this matter if you have any helpful advice! I’m not being a hog as you will, I’m willing to take a loss, if it means I didn’t settle for less then what I came for. Ask my kids.. you don’t mess with mama unless your ready to fight it to the end... my credit report is waiting for this dismissal with prejudice...