Have to file Discovery by Monday, To late for Arbitration?

[SSBULUE]

Sued in Arizona by Cavalry
OC = Citibank
Amount = $5837.57
Court = Mohave County Justice Court

 I was serverd on Nov. 6, 2018 and filed my answer on Nov. 26, 2018.
This was within the 20 days allowed. I mailed the answer to the Plaintiffs
attorney also. The plaintiffs attorney file an MSJ anyway, which was denied.

 I just recieved the discovery packet from the attorney and have until monday
to be within the time line of 40 days to file my discovery paper work.

 I found this site one day before the deadline for filing my answer on Nov. 26
and that is why I even responded at all. Unfortunately I think I made some mistakes.
I did not mention arbitration as a defense and I admitted that this court has jurisdiction over this matter.

 The Plaintiffs attorney sent a packet of info which includes the correct CC agreement which explains the Arbitration, so I started on this site reading about arbitration and it seems like what I should do.

Questions:
1: Do I have to file anything for discovery?
2: Can I still file a MTC?
3: If I can file to move to arbitration can I use the agreement that was sent to me by    the Plaintiffs attorney so they can not say I am not using the correct agreement to    block the move to arbitration?

[BV80]

@Harry Seaward

@Goody_Ouchless

[Goody_Ouchless]

I would file MTC, stating that the CC agreement provided in discovery contains an arbitration clause. You would reference the applicable AZ Statue that states arbitration is preferred method of dispute resolution.

[SSBULUE]

2 hours ago, Goody_Ouchless said:

I would file MTC, stating that the CC agreement provided in discovery contains an arbitration clause. You would reference the applicable AZ Statue that states arbitration is preferred method of dispute resolution.

Thank you Goody_Ouchless.

Do I still need to file my own discovery paper work (I Don't have anything to present in the Discovery)?

[Goody_Ouchless]

Start here for AZ statutes on arbitration. As for the appellate ruling I mentions, I don't think that can be cited, but the point is that the appeals court has enforced right to arbitrate when lower court gets it wrong. 

It's basically this - since there is an agreement to arbitrate, the court must compel them, if they refuse voluntarily:

12-3007. Motion to compel or stay arbitration

A. On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:

1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate.

2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

 

[Thomas2]

I use the MTC template provided here with the following addition for Arizona:

Quote

Not only does the FAA govern the arbitration provision, the Arizona adopted UAA and RUAA also confirm the need for honoring contractual arbitration agreements for the resolution of disputes.  Whether XXXXX is a national banking association and therefore subject to the AZ UAA or a state-chartered bank and therefore subject to the AZ RUAA, both are in agreement on the validity and enforceability of arbitration provisions in valid contracts.  ARS 12-1501 (adopted from the UAA) and ARS 12-3006 (adopted from the RUAA) respectively state:

ARS 12-1501. Validity of arbitration agreement

 A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable, save upon such grounds as exist at law  or in equity for the revocation of any contract.

 ARS 12-3006. Validity of agreement to arbitrate

 A. An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable and irrevocable except on a ground that exists at law or in equity for the revocation of a contract.

 B. The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

 C. An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

 D. If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.

 Furthermore, the relevant portions of ARS 12-1502 (adopted from the UAA) and ARS 12-3007 (adopted from the RUAA) respectively are in agreement on staying proceedings and compelling arbitration when presented with a valid arbitration agreement and a valid Motion to Compel.

12-1502. Proceedings to compel or stay arbitration

 A. On application of a party showing an agreement described in section 12-1501, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party. Otherwise, the application shall be denied.

 B. On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

 E. An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

 12-3007. Motion to compel or stay arbitration

 A. On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:

 1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate.

 2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

 B. On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue.  If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

 D. The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

 F. If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

 G. If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

In one of my more recent cases, not only did the judge grant the MTC, she also dismissed the case entirely without prejudice.  A settlement was worked out, and the case was then dismissed with prejudice.  

[Pericles]

On 1/3/2019 at 5:59 PM, SSBULUE said:

The plaintiffs attorney file an MSJ anyway, which was denied.

Did you file a response in opposition to the MSJ?  If not, you're lucky that the motion was denied even though unopposed.

 

On 1/3/2019 at 5:59 PM, SSBULUE said:

... and filed my answer on Nov. 26, 2018.

Did you include arbitration as an affirmative defense in your answer?

 

On 1/3/2019 at 5:59 PM, SSBULUE said:

1: Do I have to file anything for discovery?

If your position is that the plaintiff's claims are subject to private arbitration, then participating in any sort of discovery in court might be viewed as inconsistent with arbitration.  Arbitration has its own discovery process that replaces discovery in court.  If you move to compel arbitration, you likely have nothing to disclose other than the arbitration agreement and any correspondence that you sent to the plaintiff (or the plaintiff's attorney) that indicated your intent to exercise the arbitration rights in the agreement.

These can be included with your motion to compel rather than as an independent disclosure.

 

On 1/3/2019 at 5:59 PM, SSBULUE said:

2: Can I still file a MTC?
3: If I can file to move to arbitration can I use the agreement that was sent to me by the Plaintiffs attorney so they can not say I am not using the correct agreement to block the move to arbitration?

The citibank agreements usually have very broad language stating that arbitration may be sought and enforced at any time before trial.

If plaintiff's attorney already disclosed the arbitration agreement to you, they are unlikely to claim that it is not the correct agreement in any opposition.

Since you probably don't have to worry about another MSJ being filed, your focus should be on filing the motion to compel, sending a notice to plaintiff's attorney that you're seeking to exercise the contract right to private arbitration, and possibly amending your answer if arbitration is not included as an affirmative defense.  You should try to get this done well before any pre-trial conference or mediation conference is scheduled.

[SSBULUE]

@Pericles

 I was going to be one of the 94% who do not respond to the lawsuit, but the day before the deadline to file an answer, I foundthis site and learned that I could fight back. I read all night but it was overwhelming. I did learn enough that I decided to file an answer.

 I now have had time to do a lot of reading and studying on the site and realize I made mistakes in my answer:

1: I admitted that the justice court where the suit was filed had jurisdiction.

2. I did not include arbitration as an affirmative defense in my answer.

3.Because I did not have any knowledge of what I was doing I answered the complaint as:

" I lack sufficient knowledge to admit or deny plaintiffs allegations, therefor, I deny these allegations"

 

 I believe I should amend my answer after reading the Card Agreement provided by the plaintiff.

I now believe the court does not have jurisdiction, but I did not know that before reading the Citibank agreement.

1. What do I have to file to amend my answer?

 

 The MSJ that was filed by the plaintiff sought to have judgement rendered because I had not filed an answer. (which I had)

I immediately went to the clerk of the court and asked about the MSJ,  (had no clue what it was at that time.) The clerk checked the date of my answer then went and spoke to someone. She then informed me that I had done everything correctly and the judge would deny the motion.

 

A. I will be sending a letter to the plaintiff tomorrow choosing arbitration.

B. I will file MTC tomorrow, pointing out in the MTC that only upon reviewing the documents sent by plaintiff did I become aware of the

     right to Arbitration.

C. I will include in the MTC:

"Cavalry SPV I has sued me on a credit card debt they claim was previously owned by Citibank.  Because Cavalry SPV I claims to have purchased the debt, they are now bound by the original agreement, as per Plaintiffs Discovery documents. The Citibank card agreement provides that either party may demand private contractual arbitration any time before trial.  I have made Cavalry SPV I aware that I want to use arbitration to settle their claims against me, and now move this court pursuant to Arizona Revised Statutes 12-1502 to 1.) order the parties into private contractual arbitration in accordance with the governing credit card agreement; and 2.) stay these proceedings, including any and all other pending motions currently before this court, while awaiting the outcome of said private contractual arbitration."

 

 I will start researching on the forum to find out how to ammend my answer which I believe should be filed at the same time as the MTC, otherwise the judge might say I already admitted the court had jurisdiction.

 

Thanks everyone for the help and will update as this proceeds.

 

[Pericles]

Seems like maybe they didn't file a MSJ (Motion for Summary Judgment), but rather an Application for Entry of Default.  The plaintiff may have been a little quick to file for default, or your service of your answer may have crossed paths with their filing, since your answer was filed close to deadline.

So they still could file a Motion for Summary Judgment, which is quite different form an Application for Entry of Default. Try to get the MTC filed soon.

[SSBULUE]

 Looks like Justice Court Rules of Civil Procedure Rule 19 for the state of Arizona allows for a Motion to amended my answer.

So I will also be filing the motion to amend tomorrow.