MTC Arbitration DENIED - No hearing set??!

[Around The Fur]

1. Who is the named plaintiff in the suit?  Midland Funding

2. What is the name of the law firm handling the suit?  Eaton Group Attorneys LLC

3. How much are you being sued for?  $+/- $3,000 + Court Costs

4. Who is the original creditor? (if not the Plaintiff)   Synchrony Bank

5. How do you know you are being sued? (You were served, right?)  Served 

6. How were you served? (Mail, In person, Notice on door)  In person

7. Was the service legal as required by your state?  Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  No Contact w/ Midland - May have received mail notices in the past

9. What state and county do you live in?  Louisiana

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  04/16

11. When did you open the account (looking to establish what card agreement may be applicable)?  06/2014

12. What is the SOL on the debt? To find out:  3 yrs

13. What is the status of your case? Suit served? Motions filed?  Served 1/22 - Have Answer to Petition (denials w/ arbitration as sole affirmative defense) prepared to file, working on MTC Arbitration

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').  Unfortunately, no.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  No evidence attached to Petition. They only included a Request for Admissions with the Petition.

 

Sincere thanks to all contributors on this board. I have literally lived my last 48 hours here and now have a plan. I have a few procedural questions that are still unclear to me, and would greatly appreciate any help.  I am preparing an Answer to Petition and MTC Arbitration w/ attached credit agreement affadavit to file with the Court early next week.  On the Answer, I denied the two accusations and listed arbitration as my sole affirmative defense.

1) Do I need to worry about answering their Request for Admission of Fact right now? (I believe I have 30 days in accordance w/ LA law.)

2) Do I file the answer and MTC Arbitration (w/ affadavit) simultaneously?

3) Using the template provided by @fisthardcheese as my foundation, I'm curious about #2 (Defendant sent a letter via certified mail to Plaintiff's attorney.) I have NOT done this step. Do I omit #2, or go ahead and draft a letter - which would be mailed same day as Answer & MTC Filing?

[Harry Seaward]

3 hours ago, Around The Fur said:

1) Do I need to worry about answering their Request for Admission of Fact right now? (I believe I have 30 days in accordance w/ LA law.)

I would have it done before the deadline. As far as how to answer, I prefer the following response. 

Objection. I have demanded private contractual arbitration to resolve this dispute, and believe answering plaintiff's request #x may constitute a waiver of some or all of my arbitration rights. 

3 hours ago, Around The Fur said:

2) Do I file the answer and MTC Arbitration (w/ affadavit) simultaneously?

This is the best way to do it. 

3 hours ago, Around The Fur said:

3) Using the template provided by @fisthardcheese as my foundation, I'm curious about #2 (Defendant sent a letter via certified mail to Plaintiff's attorney.) I have NOT done this step. Do I omit #2, or go ahead and draft a letter - which would be mailed same day as Answer & MTC Filing?

The letter is more or less a formality, but i always tell people to do it just to preclude any attempts by opposing to claim they were not made aware of your arb demand. As for timing, you want to get it sent either before or at the same time you file the MTC.

[Around The Fur]

Perfect. I'll get all of this filed beginning of next week. Thanks for the help! ?

[Around The Fur]

ugghh..  My GF is so pissed at me because I've literally been on here researching and drafting documents for 2 days straight.  Regardless, I'm probably making this MTC more difficult than it actually is, but had a few more questions:

1) AAA or JAMS for Midland? I have JAMS in there now, but conflicting opinions on which is more effective for a Midland Funding case

2) Date of last payment, date of default, or date of charge off for accompanying CC agreement in affadavit? It appears the arbitration clauses for my specific card (going back to when I opened it) is the exact same for every agreement I've pulled up just FYI.

3) On that note, the downloadable CC agreement doesn't seem to contain the "entire" agreement - just arbitration portion, pricing, etc. I could be wrong here, or it may not even matter.

4) I'm assuming I should add a Louisiana state case or two pertaining to arbitration directly after the SC case listed in the cheese's template that I am using?

5) At what point should I begin my process with JAMS? (I haven't responded to Plaintiff's summons at this point, but will file well within the 15-day time frame)

6) Tried to find other user's MTC drafts using a Synchrony CC Agreement (that matches my card issuer) so I could format this thing correctly, but nothing. I know the language in the a. b. c. sections of point #2 needs to be exact pertaining to my agreement, but I'm having a little trouble deciphering where and how to properly word this one, and what information is necessary.  Basically the same verbiage as the MTC samples here, but different order, etc. So any help on that particular section and its wording would be awesome.  Below, I'm copying the arbitration section in my CC agreement:

 

RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.
• What claims are subject to arbitration
1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
• No Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.
If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.
5
• How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA),
1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018,
www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.
• Governing Law for Arbitration
This Arbitration section of your Agr
eement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.
• How to reject this section
You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, P.O. Box 965012,
Orlando, FL 32896-5012. This is the only way you can reject this section.

 

As always, any advice or direction would be appreciated. I will keep updating my thread with brief summaries of my process as it goes. Obviously, I'm in no position to offer advice to anyone yet, but I will make sure my thread is helpful to future users as my contribution. Thanks all

To recap so far:

1) Served suit w/ attached Request for Admission of Facts on 1/22.....  2) Sent Plaintiff's Atty a letter informing of my election for arbitration CMRRR on 1/25.....  3) Plan to file Answer and MTC Arbitration on 1/28 at the same time......  4) Request to Admission of Fact will be responded to prior to 30-day expiration (objections due to arbitration.)

[fisthardcheese]

9 hours ago, Around The Fur said:

My GF is so pissed at me because I've literally been on here researching and drafting documents for 2 days straight.

Ask her if she has the $3500 to allow you to settle with Midland or if she would rather let you spend a few days to save that $3500.

9 hours ago, Around The Fur said:

1) AAA or JAMS for Midland? I have JAMS in there now, but conflicting opinions on which is more effective for a Midland Funding case

I would use JAMS. AAA will reject a Midland case immediately, which sounds good, but it will likely require extra court hearings and a second filing with JAMS anyway.

9 hours ago, Around The Fur said:

2) Date of last payment, date of default, or date of charge off for accompanying CC agreement in affadavit? It appears the arbitration clauses for my specific card (going back to when I opened it) is the exact same for every agreement I've pulled up just FYI.

As close to the date of default as you can find.  This is less important as it seems.  As long as you have an agreement that is dated sometime during the time your account was open and in use, it won't much matter.  The worst that can happen is the Plaintiff says you have the wrong agreement and you ask them to produce the correct one. Any Synchrony agreement they produce will have the same arbitration language, so you use their agreement and continue as planned. Additionally, it will be pretty difficult for them to argue against your card agreement when you have an affidavit along with it.

10 hours ago, Around The Fur said:

3) On that note, the downloadable CC agreement doesn't seem to contain the "entire" agreement - just arbitration portion, pricing, etc. I could be wrong here, or it may not even matter.

https://www.synchronybankterms.com/

The card agreements listed here are the full agreements

10 hours ago, Around The Fur said:

4) I'm assuming I should add a Louisiana state case or two pertaining to arbitration directly after the SC case listed in the cheese's template that I am using?

I think it is best to do so.  I would add them prior to the SCOTUS case in the template.  Think of it as increasing in size (or importance) local, state, federal.

10 hours ago, Around The Fur said:

5) At what point should I begin my process with JAMS?

After the court grants your MTC.   Take care of the court things first. Get the court to order arbitration, THEN start the arbitration.

 

10 hours ago, Around The Fur said:

6) Tried to find other user's MTC drafts using a Synchrony CC Agreement (that matches my card issuer) so I could format this thing correctly, but nothing. I know the language in the a. b. c. sections of point #2 needs to be exact pertaining to my agreement, but I'm having a little trouble deciphering where and how to properly word this one, and what information is necessary.

Think of it in terms of "what in the agreement gives you the ability to demand arbitration":

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

That would be all you need.  I even would possibly only include #1 and stop after "relates to your account..."  I don't feel a need to muddle things with the exclusions, which don't apply to your case anyway.  But some people include them because otherwise it feels like #1 is incomplete. 

 

[Thomas2]

3 hours ago, fisthardcheese said:

AAA will reject a Midland case immediately, which sounds good, but it will likely require extra court hearings and a second filing with JAMS anyway.

This does not appear to be true any longer, certainly not in my experience. 

[Around The Fur]

Update:  Judge denied my MTC for arbitration. No reasoning or anything, just the order I attached marked denied.  What happens next? I haven't received a hearing date or anything.

[Harry Seaward]

Your options are roll the dice and likely lose in court or appeal the denied MTC.

[Around The Fur]

Not liking that first option lol. So, just file an appeal same court, same process?

[Around The Fur]

Second, can I find out reasoning? Regardless, is there a legitimate basis for them to deny in LA? The synchrony arb agreement is pretty clear. I followed the process to a T.

[Harry Seaward]

Appeal is considerably more involved than what you've had to do to this point, and there will likely be some moderate costs involved. It's about $600 here in AZ, but all of those fees can be waived or deferred here.

See what you can find for your court rules and fees re: appeals.

[Around The Fur]

I was reading on another thread where a judge denied the defendant's MTC, but stayed the case pending. Almost as if the case was put on hold to see if defendant would initiate arbitration. I'm wondering if that's my case as well. Would it be wise to initiate with JAMS and promptly file a motion to reconsider (attaching JAMS paperwork?) or stick with an appeal to a higher court or different judge? I'm completely uneducated on the appeal process. For my state, it appears I have a supervisory writ and an Interlocutory Judgement appeal - which in some cases is not appealable. I believe I can defer appeal fees if I take that route.

 

My state is extremely liberal on arbitration, so I'm really confused on the basis of the judge's decision here if it's a straight forward denial. However, maybe he's waiting to see if I initiate arbitration? I was reading this state case regarding a denied motion to compel by the District Court - all of it suggesting arbitration should basically always be given favor in Louisiana. Thoughts?

https://www.casemine.com/judgement/us/5914748aadd7b049343a1aff

[fisthardcheese]

On 2/1/2019 at 8:28 PM, Harry Seaward said:

Appeal is considerably more involved than what you've had to do to this point, and there will likely be some moderate costs involved. It's about $600 here in AZ, but all of those fees can be waived or deferred here.

See what you can find for your court rules and fees re: appeals.

Is that true on an interlocutory appeal as well?  I am surprised any court would have a higher filing fee than the Federal Courts at $400.

OP, I would look into how to file an interlocutory appeal.  This is something you can do now to appeal just the MTC ruling only and not have to wait for your case to be over an appeal in full.

[Harry Seaward]

5 hours ago, fisthardcheese said:

Is that true on an interlocutory appeal as well?  I am surprised any court would have a higher filing fee than the Federal Courts at $400.

AZ State Court appeal fee is $280 (I thought it was $380), but you also have to pay at the lower court level a $100 appeal fee and a $150 Cost Bond.  There's also a supersedeas bond equal to the amount of the judgment, but a.) this only applies where judgment has been entered (not common on a denied MTC), and b.) it's completely optional because it's only function is to preclude collection action.

[Brotherskeeper]

@fisthardcheese @Around The Fur 

Arkel Constructors v. Duplantier & Meric, 965 So. 2d 455 - La: Court of Appeals, 1st Circuit 2007

"Cases decided prior to the aforementioned amendment to LSA-C.C.P. art. 2083 consistently held that rulings denying a motion to compel arbitration were immediately appealable. In Collins v. Prudential Ins. Co. of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829, our supreme court held that an order compellingarbitration was not appealable. However, the court specifically noted in that opinion that Section 16 of the Federal Arbitration Act directs that orders denying arbitration would be immediately appealable. The supreme court reiterated that holding in Aguillard v. Auction Management Corp., 04-2804, 04-2857, p. 5 n. 5 (La.6/29/05), 908 So.2d 1, 6 n. 5: "A judgment denying a request for arbitration has been held to be an appealable, interlocutory order." (Emphasis added.) See also Shroyer v. Foster, 01-0385, p. 3 n. 4 (La.App. 1st Cir.3/28/02), 814 So.2d 83, 86 n. 4, citing Collins, 99-1423 at p. 8, 752 So.2d at 830, and Stadtlander v. Ryan's Family Steakhouses, Inc.,34,384, pp. 2-3 (La.App. 2nd Cir.4/4/01), 794 So.2d 881, 884-885, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790. These cases were based on the implicit reasoning that to deny an immediate appeal of a motion denying arbitration would cause irreparable harm to the party asserting its contractual right to arbitration. With the omission of this language 459*459 in the amended version of LSA-C.C.P. art.2083, an immediate appeal of an interlocutory ruling must be specifically provided by law. In the absence of legislation expressly authorizing an appeal of an interlocutory judgment, a party must now seek review under the appellate court's supervisory jurisdiction. LSA-C.C.P. art. 2083, Comments-2005 (a)(b)."

In a decision rendered by this court after the effective date of the amendment to LSA-C.C.P. art.2083, we again reiterated and applied the holding in Aguillard, that a judgment denying a request for arbitration is an appealable, interlocutory order, without any mention of the amendment to LSA-C.C.P. art. 2083. Johnson v. Blue Haven Pools of Louisiana, Inc., 05-0197, p. 4 n. 1 (La.App. 1st Cir.2/10/06), 928 So.2d 594, 596 n. 1. In our most recent decision concerning an appeal of the denial of a motion to compel arbitration, this court merely addressed the merits of the issues before it, without mentioning the interlocutory nature of the judgment before it, nor addressing the issue of appealability. Lafleur v. The Law Offices of Anthony G. Buzbee, P.C., 06-0466 (La. App. 1st Cir.3/23/07), 960 So.2d 105. However, in Wooley v. Amcare Health Plans of Louisiana, Inc., 05-2025, p. 10 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 674, we held that Act 205, which amended LSA-C.C.P. art. 2083, was procedural and should be applied retroactively. It appears clear that the amendment to LSA-C.C.P. art. 2083 now prohibits an immediate appeal from a motion denying a request for arbitration, despite any contrary indications in the jurisprudence.

 

Aguillard v. Auction Management Corp., 908 So. 2d 1 - La: Supreme Court 2005

"Motion to Stay Pending Arbitration

"According to [La.Rev.Stat. § 9:]4202, a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement and (2) the issue is referable to arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with arbitration." International River Center v. Johns-Manville Sales Corp., 02-3060, p. 3 (La.12/3/03), 861 So.2d 139, 141. In this case, unquestionably a written arbitration agreement does exist, and because the issue in this case arises from and is related to the Auction Terms & Conditions and its breach, the issue is referable to arbitration. Moreover, the record establishes the defendants are not in default in proceeding with arbitration.^[16] Therefore, we reverse the court of appeal and stay the present district court proceedings pending arbitration in accordance with Section 4202."

[Around The Fur]

Great info gents. Appreciate the help. I'll get the ball rolling immediately

[Around The Fur]

37 minutes ago, Brotherskeeper said:

@fisthardcheese @Around The Fur 

Arkel Constructors v. Duplantier & Meric, 965 So. 2d 455 - La: Court of Appeals, 1st Circuit 2007

"Cases decided prior to the aforementioned amendment to LSA-C.C.P. art. 2083 consistently held that rulings denying a motion to compel arbitration were immediately appealable. In Collins v. Prudential Ins. Co. of America, 99-1423, p. 6 (La.1/19/00), 752 So.2d 825, 829, our supreme court held that an order compellingarbitration was not appealable. However, the court specifically noted in that opinion that Section 16 of the Federal Arbitration Act directs that orders denying arbitration would be immediately appealable. The supreme court reiterated that holding in Aguillard v. Auction Management Corp., 04-2804, 04-2857, p. 5 n. 5 (La.6/29/05), 908 So.2d 1, 6 n. 5: "A judgment denying a request for arbitration has been held to be an appealable, interlocutory order." (Emphasis added.) See also Shroyer v. Foster, 01-0385, p. 3 n. 4 (La.App. 1st Cir.3/28/02), 814 So.2d 83, 86 n. 4, citing Collins, 99-1423 at p. 8, 752 So.2d at 830, and Stadtlander v. Ryan's Family Steakhouses, Inc.,34,384, pp. 2-3 (La.App. 2nd Cir.4/4/01), 794 So.2d 881, 884-885, writ denied, 01-1327 (La.6/22/01), 794 So.2d 790. These cases were based on the implicit reasoning that to deny an immediate appeal of a motion denying arbitration would cause irreparable harm to the party asserting its contractual right to arbitration. With the omission of this language 459*459 in the amended version of LSA-C.C.P. art.2083, an immediate appeal of an interlocutory ruling must be specifically provided by law. In the absence of legislation expressly authorizing an appeal of an interlocutory judgment, a party must now seek review under the appellate court's supervisory jurisdiction. LSA-C.C.P. art. 2083, Comments-2005 (a)(b)."

In a decision rendered by this court after the effective date of the amendment to LSA-C.C.P. art.2083, we again reiterated and applied the holding in Aguillard, that a judgment denying a request for arbitration is an appealable, interlocutory order, without any mention of the amendment to LSA-C.C.P. art. 2083. Johnson v. Blue Haven Pools of Louisiana, Inc., 05-0197, p. 4 n. 1 (La.App. 1st Cir.2/10/06), 928 So.2d 594, 596 n. 1. In our most recent decision concerning an appeal of the denial of a motion to compel arbitration, this court merely addressed the merits of the issues before it, without mentioning the interlocutory nature of the judgment before it, nor addressing the issue of appealability. Lafleur v. The Law Offices of Anthony G. Buzbee, P.C., 06-0466 (La. App. 1st Cir.3/23/07), 960 So.2d 105. However, in Wooley v. Amcare Health Plans of Louisiana, Inc., 05-2025, p. 10 (La.App. 1st Cir.10/25/06), 944 So.2d 668, 674, we held that Act 205, which amended LSA-C.C.P. art. 2083, was procedural and should be applied retroactively. It appears clear that the amendment to LSA-C.C.P. art. 2083 now prohibits an immediate appeal from a motion denying a request for arbitration, despite any contrary indications in the jurisprudence.

 

Aguillard v. Auction Management Corp., 908 So. 2d 1 - La: Supreme Court 2005

"Motion to Stay Pending Arbitration

"According to [La.Rev.Stat. § 9:]4202, a court shall stay the trial of an action in order for arbitration to proceed if any party applies for such a stay and shows (1) that there is a written arbitration agreement and (2) the issue is referable to arbitration under that arbitration agreement, as long as the applicant is not in default in proceeding with arbitration." International River Center v. Johns-Manville Sales Corp., 02-3060, p. 3 (La.12/3/03), 861 So.2d 139, 141. In this case, unquestionably a written arbitration agreement does exist, and because the issue in this case arises from and is related to the Auction Terms & Conditions and its breach, the issue is referable to arbitration. Moreover, the record establishes the defendants are not in default in proceeding with arbitration.^[16] Therefore, we reverse the court of appeal and stay the present district court proceedings pending arbitration in accordance with Section 4202."

So it appears I need a supervisory writ from what I'm reading? So I file a notice with the clerk and then file the writ with the appellate court?

 

"Rulings  that  cannot  be  appealed  as  of  right,  for  example,  interlocutory  judgments  or  orders,  may  be reviewed  by  supervisory  writ.  The  Louisiana  courts  of  appeal  are  vested  with  supervisory  jurisdiction  over cases  that  arise  within  their  respective  circuits.  (La.  Const.  Art.  V,  §  10(A);  2005  Comment  (a)  to  La.  Code Civ.  Proc.  Ann.  art.  2083;  La.  Code  Civ.  Proc.  Ann.  art.  2201.)  A 

Louisiana  court  of  appeal  may  grant a writ where either:

• The failure to grant a writ would result in irreparable injury.

• The following are true:

• the trial court's decision is incorrect; • there is no dispute of fact to be resolved; and

• a reversal will end the litigation. (Herlitz Constr. Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So. 2d 878, 878 n.1 (La. 1981).)

Courts have found the following types of rulings appropriate for review by supervisory writ:

• Improper venue (Land v. Vidrine, 62 So. 3d 36, 40 (La. 2011)).

• Denial  of  a  jury  trial  or  denial  of  a  motion  to  strike  a  jury  demand  (Smith  v.  City  of  Lake  Charles Police  Dep’t,  858  So.  2d  869,  871  (La.  Ct.  App.  2003);  Scott  v.  Clark,  583  So.  2d  938,  940  (La.  Ct. App. 1991))

• Denial of a motion to  compel  arbitration  (Arkel  Constructors,  Inc.  v.  Duplantier  &  Meric,  Archit.,  L.L.C., 965 So. 2d 455, 459 (La. Ct. App. 2007))."

[Brotherskeeper]

@Around The Fur You may find some useful info on writs here:

https://raymondpward.typepad.com/files/btg-2017-oct.-ward-materials.pdf

[Around The Fur]

Alright, got an update.

Judge denied my MTC arbitration with no justification. I filed my "Intent to Seek Supervisory Writ" (appeal) and I am working on my appeal package currently. I have still not received a hearing date, or deadline for supervisory writ (I requested 30 days from denial of MTC per LA code.)

Yesterday, I received a package from Midland that included:  1) Objection to affirmative defense and motion to dismiss, 2) Request for production of document, 3) Account interrogatories, 4) Request for genuineness of documents. I am attaching a copy of these documents for review.

First priority will be to complete and file my appeal. Since I have time to respond to their discovery docs, should I wait on response from appellate court on my MTC arbitration before filing responses? Obviously, I will not let the deadline pass for my response. Additionally, any advice on responses to the attached documents? Lastly, should I begin arbitration process with JAMS or wait for response on appeal? I ask because of the wording on their Objection and Motion to Dismiss and Production of Docs.  Still dumbfounded as to why a judge denied my MTC considering Louisiana has a boatload of case law regarding its extremely liberal stance on favoring arbitration ?.  As always, any guidance is GREATLY appreciated!!!

[fisthardcheese]

I would only be concerned about your appeal at this point.  As a matter of law, your appeal should succeed and render all of the garbage they just threw at you moot.  If the deadline for responding to these discovery requests gets close and you have not received a response to your appeal yet, then I would file a request for a 60 day extension to respond to discovery due to your pending MTC appeal.  I would ask for 60 days, because I would expect the judge to cut in half whatever time you ask for.

[Around The Fur]

Update:  Had to file an appeal due to my MTC being denied initially. Appeal was won, and decision was overturned.  I began the arbitration process, and JDB attorney has yet to pay filing fee. He sent an email to our arbitrator stating that in JAMS agreement, if claims are made in Court and other party is granted MTC, then it is JDB responsibility to initiate arbitration proceedings.  In same email, it was mentioned that state case was dismissed.  However, I have not received any documentation confirming that statement.

Looks like I am in a good spot, but the arbitrator is wanting a response from me - seemingly agreeing with the JDB about who should initiate proceedings. Anyone ever ran across this situation?

@fisthardcheese

[fisthardcheese]

Big congrats on your appeal!  That is a huge win!

You said you began the arbitration process but nothing is initiated yet?  Can you clarify exactly what has happened step by step in JAMS so far?

[BV80]

Congratulations!  ?

[Around The Fur]

So I did confirm that the case was dismissed last week. Thank you guys SO MUCH!

To answer the question, after winning the appeal, I filed JAMS paperwork to initiate the arbitration process. After several attempts by JAMS to collect the initial deposit from JDB, he sent an email saying that according to JAMS policy:

""On page 4 of that agreement, “Resolving a Dispute with Arbitration” is discussed. On the following page 5, under “How to start an arbitration, and the arbitration process”, under number 2, “If a party files a lawsuit in court asserting claims(s) that are subject to arbitration and the other party files a motion with the court to arbitrate, which is granted, it will be the responsibility of the party asserting the claims (s) to commence the arbitration proceeding.” All these conditions are satisfied in this instance. Therefore, under the terms of this agreement (JDB) must be the party bringing the arbitration""

Regardless, my case is dismissed. Still wanted to provide this info in case anyone else runs into this situation in the future.

 

 

[fisthardcheese]

Did they dismiss without prejudice on a case that was stayed under your MTC order?