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Ok.  As long as it's from a year that you had the account open, it should be fine.  Just change your MTC language to match that of the agreement.

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I tried efiling through the link that you had provided a few posts back, but it is giving me this error:

"Civil filings must be filed through AZ Turbo Court."

I fond this website: file.azcourts.gov

is that the correct one?

If I efile the answer, should I select "Answer" or "Answer and counterclaim" since I have the affirmative defense?

Also, for efiling the MTC, should I just select "Motion to Compel" or should I select something under the "arbitration" section?

Lastly, they served the paperwork on April 8th. The 20 days would fall on Sunday the 28th, correct? If I go to the court on Monday the 29th, is that past the 20 days, or is it ok since the 20th day was a Sunday? 

Thank you so much!

On 4/25/2019 at 7:27 AM, Harry Seaward said:

Ok.  As long as it's from a year that you had the account open, it should be fine.  Just change your MTC language to match that of the agreement.

 

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3 hours ago, WishIWasALawyer said:

I fond this website: file.azcourts.gov

is that the correct one?

I think I used that and it worked. If it lets you file the motion in your case, it's good. 

3 hours ago, WishIWasALawyer said:

If I efile the answer, should I select "Answer" or "Answer and counterclaim" since I have the affirmative defense?

Your defense is NOT a counterclaim. Counterclaim would be if you were suing them back. Just use Answer. 

4 hours ago, WishIWasALawyer said:

Also, for efiling the MTC, should I just select "Motion to Compel"

Yes. 

4 hours ago, WishIWasALawyer said:

If I go to the court on Monday the 29th, is that past the 20 days, or is it ok since the 20th day was a Sunday? 

I personally would try to have it efiled by tomorrow, but the 20th day doesn't count if it falls on a weekend, so no harm done if you just wait and file it Monday. 

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15 hours ago, Harry Seaward said:

I think I used that and it worked. If it lets you file the motion in your case, it's good. 

I tried e-filing, and I checked the "answer" for the file to submit, it works, but then I cannot add the MTC. It only allows me to add one "lead" and then I can only add connected files which is either a exhibit or a proposed order/judgement"

How should I do this? Should I only file the answer online first? If I do that, can I go back after I submitted the answer and submit another lead (MTC)?

OR can I create a PDF with the Answer AND the MTC together on the same file, and then select "Answer" as the lead, even though it also contains the MTC? 

Also, there is a question that says "Have you previously paid your appearance fee?" What is this?

Thank you!

 

 

 

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1 hour ago, WishIWasALawyer said:

How should I do this? Should I only file the answer online first? If I do that, can I go back after I submitted the answer and submit another lead (MTC)?

Yes. 

1 hour ago, WishIWasALawyer said:

OR can I create a PDF with the Answer AND the MTC together on the same file, and then select "Answer" as the lead, even though it also contains the MTC? 

No, don't do this. The Answer and MTC are two completely different filings, and they should not be combined into one. 

Quote

Also, there is a question that says "Have you previously paid your appearance fee?" What is this?

There is a fee to file an Answer/appearance. (No fee for any filings after that, though.) I think the appearance fee is around $250. I'm not sure if you can pay that on the efile website.

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Thank you @Harry Seaward. I first submitted the Answer with the $250 filing fee, then went back and submitted the MTC.

It says the status is "pending filing", so hopefully everything is OK. 

now, I guess I just need to wait and hope for the best....

Do you know how long it takes to find out if the MTC is granted? anything I need to do to? How will I be notified?

 

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Per court rules, Midland has 20 days to respond to your MTC, and you have 5 days to reply to their response. Add in a few days for mailing and calendaring and you're looking at a typical 45 day window. We've seen courts rule in a week (even though they aren't supposed to), and we've seen them wait 3 months. I believe the court rule is they are supposed to rule within 60 days on a 'ripe' ruling, with 'ripe' meaning the deadline for all parties to respond has passed. 

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11 minutes ago, Harry Seaward said:

Per court rules, Midland has 20 days to respond to your MTC, and you have 5 days to reply to their response. Add in a few days for mailing and calendaring and you're looking at a typical 45 day window. We've seen courts rule in a week (even though they aren't supposed to), and we've seen them wait 3 months. I believe the court rule is they are supposed to rule within 60 days on a 'ripe' ruling, with 'ripe' meaning the deadline for all parties to respond has passed. 

So if Midland does not respond to the MTC within the 20days, the case will be dismissed all together?

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2 minutes ago, WishIWasALawyer said:

So if Midland does not respond to the MTC within the 20days, the case will be dismissed all together?

Not likely, no. The court would just grant the MTC and stay the court case pending arbitration. 

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But Midland will almost certainly respond. The only way they wouldn't is by mistake which happens once in a blue moon on 100,000 lawsuits a year. Better to buy a lottery ticket if you feel that lucky. 

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4 minutes ago, Harry Seaward said:

But Midland will almost certainly respond. The only way they wouldn't is by mistake which happens once in a blue moon on 100,000 lawsuits a year. Better to buy a lottery ticket if you feel that lucky. 

Oh ok I get it. What do they usually come up with when responding to the MTC? Trying to get ahead of what I would need to prepare because 5 days to respond is not a lot of time when you're not familiar with these things.

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Their new thing is arbitration is not an "equitable" solution because it costs them much more than it costs you. AZ has clear caselaw that a party would have to show they are financially unable to pay the fees. This obviously isn't the case for Midland.

If your MTC asked for dismissal in the alternative, that's mostly what Midland will be responding to. 

Other that that, they seem to acquiesce to the MTC pretty easily these days. 

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@Harry Seaward you were right and they just responded to my MTC saying this:

"1- Proceeding with Private Arbitration in this matter would result in economic waste. The arbitration provision should not be enforced as grounds exist in equity not to do so, as enforcing the provision would result in unnecessary economic waste. As Defendant elected probate arbitration after being served with the complaint, plaintiff has already incurred clerk's fees and service fees. If this court were to permit this case to be sent to private arbitration, plaintiff's filing costs may exceed the total amount of plaintiff claim.

they then quoted the 9th circuit held in Van Ness Townhouses v. Mar industries Corp.

Then quoted Arizona A.R.S 12-1501

2- The court should appoint a judge pro tem to act as arbitrator pursuant to A.R.S. 12-1503. Even if the court determines that the arbitration provision would not result in economic waste, then plaintiff request a judge pro tem to act as arbitrator in this case. Under ARC 12-1503, if the agreed method fails or for any reason cannot be followed for conducting an arbitration, the court on application of a party shall appoint one or more arbitrators. in the present case, it is clear that the agreed method of arbitration in this matter would result in: a) serious economic waste. b) achieve an absurd result not intended by the parties agreement. c) would undercut the purpose of arbitration of "efficiency and economy"

For that reason, should the court be inclined to grant Defendant's request, then at the bare minimum, this court shall appoint a Judge Pro Tem and order said Judge to employ a process similar to that outline in rules 72 through 76 of the AZ rules of civil procedure. Pursuant to the parties agreement, the arbitration would be binding and non-appealable."

 

What should be my next step? 

Thank you!!!

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59 minutes ago, WishIWasALawyer said:

Pursuant to the parties agreement, the arbitration would be binding and non-appealable.

This is precious. They want to bypass the entire arbitration provision but ask the court to enforce some low-level function from that provision that is well established in state laws and piles of caselaw. 

The only reason I knew this was coming is because they just did it to someone else here a couple weeks ago. You can read how we advised her to handle it here. 

https://www.creditinfocenter.com/community/topic/330718-being-sued-by-midland-funding-filed-mtc-arb-they-opposed/?tab=comments#comment-1377852

 

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Something I don't think came up in the other thread is their attempt to have the court appoint a pro tem judge as an arbitrator. IMO, this needs to be addressed specifically. Something like the agreement needs to be enforced as written, unless Midland would like to stipulate to some parts of the agreement you'd like to toss out. 

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9 minutes ago, Harry Seaward said:

Something I don't think came up in the other thread is their attempt to have the court appoint a pro tem judge as an arbitrator. IMO, this needs to be addressed specifically. Something like the agreement needs to be enforced as written, unless Midland would like to stipulate to some parts of the agreement you'd like to toss out. 

I don't know what a pro team judge is but I take it, it would be int heir favor cost wise? 

I am reading the other thread you mentioned, trying to understand what I need to do, and how you respond to their objection.

Also, do I only have 5 days to file my answer? They filed it on 4/30 but only hit the docket on 5/1. I didn't think they would respond so quickly and checked today and saw they did. So I basically lost 2 days already... I'm stressing out.... 😢 

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25 minutes ago, WishIWasALawyer said:

I don't know what a pro team judge is but I take it, it would be int heir favor cost wise? 

Pro tem is a temporary judge.  Usually a lawyer or retired judge.  They fill in when the regular judge is too busy playing golf.  The cost is probably free, since it's court appointed.

33 minutes ago, WishIWasALawyer said:

Also, do I only have 5 days to file my answer?

5 plus 5 because they sent it via mail. And weekends don't count in the 5 days.  Although my judge blew right over my 5+5+weekends and ruled on the 2nd or 3rd day.

35 minutes ago, WishIWasALawyer said:

I'm stressing out.

Don't stress out,  Get a rough draft of your reply together and post it for us to review.  You'll be fine.  Chances are the court has already made up it's mind so your reply won't change the outcome anyway.  You still need to get it filed so it's on the record in the event you need to appeal.

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11 minutes ago, Harry Seaward said:

Pro tem is a temporary judge.  Usually a lawyer or retired judge.  They fill in when the regular judge is too busy playing golf.  The cost is probably free, since it's court appointed.

5 plus 5 because they sent it via mail. And weekends don't count in the 5 days.  Although my judge blew right over my 5+5+weekends and ruled on the 2nd or 3rd day.

Don't stress out,  Get a rough draft of your reply together and post it for us to review.  You'll be fine.  Chances are the court has already made up it's mind so your reply won't change the outcome anyway.  You still need to get it filed so it's on the record in the event you need to appeal.

I dont think they sent it by mail. on the case online, it says "electronically filed".

Im getting a draft done right now, and will post it probably sometimes tonight when im done. I can't tell you how appreciative I am that you guys are helping us. Are you a lawyer? you seem to know all these things about law, and what to do and all, so it got me wondering :)

Also, while thinking ahead, when filing this, what box do I check on the filing system? is it an answer, objection/opposition, statement, memorandum or something else? 

And last, do I need to cite cases or do I need to argue the cases they cited?

Thank you

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Oh crap.  I forgot you're in Superior Court.  Yeah, e-file eliminates the 5 additional days, but weekends still don't count in the calculation of the 5 days.

11 minutes ago, WishIWasALawyer said:

Also, while thinking ahead, when filing this, what box do I check on the filing system?

Select Reply.  Title it Defendants Reply to Plaintiff's Objection to Arbitration (or whatever they called their filing).

You don't need to get too wordy with your reply.  You're only addressing the specific things they talk about in their objection.  You case is actually much simpler than the thread I linked to a minute ago.  The only opposition they cite in your case is "economic waste".  Economic waste is not grounds under A.R.S. 12-1502 for denying a parties motion to compel.  1502 says that unless a party denies the existence of an agreement to arbitrate, the court "shall" order the parties to arbitration per the agreement.  Midland isn't denying, therefore the court is bound by 1502 to grant your MTC.  I don't think I would say "bound", though. Something a little less 'bossy'.

 

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I'd still address the 'pro tem' thing.  It's not an option under the agreement and per 12-1501, "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."  Midland doesn't argue any valid legal or equity basis in support of revoking the agreement.  The agreement should therefore be enforced as written, regardless of any ill effects it may have on either party.  Here's a case I would cite. "[W]hen the meaning and intent of the contract is clear, it is not the prerogative of the courts to change or rewrite it in an attempt to avoid harsh results." Rodemich v. State Farm Mut. Auto. Ins. Co., 637 P. 2d 748 - Ariz: Court of Appeals, 1st Div., Dept. B 1981
 

What were they quoting from the Van Ness Townhomes case? I'm not seeing anything helpful to them at all.

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4 hours ago, Harry Seaward said:

 

What were they quoting from the Van Ness Townhomes case? I'm not seeing anything helpful to them at all.

I've attached picture of what they quoted for the economic waste part.

1506761382_ScreenShot2019-05-03at1_59_41AM.thumb.png.ecd7f41b6815c4ba7dfca169127d7dff.png

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1 minute ago, Harry Seaward said:

Oh, so it looks like the same thing they were arguing in the busymom5 thread. 

yes it does. it is basically the same letter

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@Harry Seaward Here is what I have so far. If you could help me out and point out what I did wrong, should delete, or should add, that would mean the world to me! Thank you again!

 

.

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