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A shame @Busymom5 didn't provide an update on her hearing, Monday. Would be interesting to hear judge's response to these arguments.

 

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@WishIWasALawyer you've got all of the key points.  I didn't intend for you to copy what I was saying word-for-word.  I was just giving you the bullet points.  It comes across a little choppy, so I might give it a little more 'flow'.  And i'd also close it with something like "For the reasons stated herein, defendant asks this court to reject Plaintiff's objection and grant Defendant's Motion to Compel Private Contractual Arbitration as originally written."

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On 5/2/2019 at 10:01 PM, 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. 

Was this the same law firm making the identical argument in two different cases?

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16 minutes ago, fisthardcheese said:

Was this the same law firm making the identical argument in two different cases?

Yes, same law firm, same arguments. How come?

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8 hours ago, WishIWasALawyer said:

Yes, same law firm, same arguments. How come?

Because the courts in these two cases haven't (or hadn't when the second one was filled) ruled against this argument yet. @Busymom5 went radio silent after her MTC hearing so we don'tknow what happened in that case. 

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3 hours ago, WishIWasALawyer said:

Yes, same law firm, same arguments. How come?

It is a unique argument we have not yet seen used, so I was curious if it was the same firm or if it was a wider spread issue.

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I am following, since I just answered Midland in CA with General denial listing lack of jurisdiction as my only affirmative defense. I am watching closely these 2 threads (busy mom's and this one.) I have been wondering how much information sharing happens between Midland offices across states. I have not filed mtc yet (I'm trying to figure how whether I have to wait for the court to post my answer before filing the motion, even though when they post, it will be backdated to the date filed.) Anyway, I will be anxious to see what er the attorneys in CA will oppose the motion. 

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13 minutes ago, Banana said:

I have been wondering how much information sharing happens between Midland offices across states.

There are trade groups, such as ACA.  I assume if the "economic waste" and "arbitration as a weapon" arguments are successful, they will quickly be shared. 

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4 hours ago, fisthardcheese said:

It is a unique argument we have not yet seen used, so I was curious if it was the same firm or if it was a wider spread issue.

It's not a unique argument. They've used it here in AZ in the past. 

https://www.creditinfocenter.com/community/topic/328863-im-being-sued-by-midland-funding-llc-case-number-xxxxxx /?do=findComment&comment=1354977

 

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2 hours ago, Goody_Ouchless said:

There are trade groups, such as ACA.  I assume if the "economic waste" and "arbitration as a weapon" arguments are successful, they will quickly be shared. 

That's scary since they seem to be getting closer to success with their arguments. I'm glad I am at least braced for them to respond. Forewarned is fore armed. Their affidavit from the OC is on the opposite coast, so I'm hoping I can use the CCP 98 strategy of trying to subpoena the witness for deposition if my MTC is rejected and I have to proceed in court. 

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39 minutes ago, Banana said:

That's scary since they seem to be getting closer to success with their arguments.

They may convince a lower/trial court with their arguments, but I really don't see that they have any hope of making it stick on appeal. They are arguing against their own agreements. It's a ludacris proposition. 

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14 hours ago, Harry Seaward said:

Still the same law firm though who are just copy/pasting a response to arbitration that so far has not been defeated.  So I can see them continuing to use it until someone actually shows up to their MTC hearing and has their MTC granted over this kind of opposition argument.

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4 hours ago, fisthardcheese said:

So I can see them continuing to use it until someone actually shows up to their MTC hearing and has their MTC granted over this kind of opposition argument.

Absolutely. We saw this when they were tying to use the "small claims" argument when cases were filed in our Justice Courts. Once a couple courts rejected it, they moved on to something else. 

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Got an update on the online case:

‘notice that plaintiff served defendant the original of plaintiff’s rule 26.1 disclosure statement on Date”

 

what at is that? I haven’t been served anything at all....

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7 hours ago, WishIWasALawyer said:

Got an update on the online case:

‘notice that plaintiff served defendant the original of plaintiff’s rule 26.1 disclosure statement on Date”

 

what at is that? I haven’t been served anything at all....

Looks like it is just a standard notice of what information they intend to use in court and any names of witnesses they intend to bring.  Most likely it's just part of the law firms automation process which files these things in every case after X number of days so that when the attorney shows up without knowing anything about the case, they will at least know that all of the proper documents have already been filed automatically.

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12 hours ago, WishIWasALawyer said:

'notice that plaintiff served defendant the original of plaintiff’s rule 26.1 disclosure statement on Date

Rule 26.1 disclosures are required to be sent by both parties within 40 days following your answer. If you have nothing do disclose, you don't need to send anything. And going to arbitration renders this requirement null.

"Served" just means they sent it via postal mail on that date. You should have it in a couple of days. 

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What does your agreement say about who initiates arbitration? And does it say they (Midland) will pay your fees if you ask them to? 

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11 minutes ago, WishIWasALawyer said:

this is what it says:

1162496882_ScreenShot2019-07-12at3_06_02PM.thumb.png.39fdc9f49598e71f264ba53356d0927a.png

#2 the plaintiff bears the burden to commence the arbitration action.

 

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Go to the AAA website and download the Demand For Arbitration form and fill it out.  Send it to AAA along with a copy of the arbitration clause portion of the card agreement.  I send a cover letter asking AAA to bill the company for any consumer portion of the filing fee per the enclosed agreement (if the agreement says they will pay your fees). Also note in the cover letter that this is a consumer arbitration ordered by XX Court.  Also enclose a copy of the signed MTC order.

Send a copy of everything, including the cover letter to the attorney via CMRRR.  I always send both at the same time and just keep the returned green card to prove you send a copy to them should it be needed to be proven later on.

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The agreement says they have to start the arbitration. Does it matter? What if they don’t ever file, is it over? And what if I file when they weren’t going to file?

what is the advantage, if any, of me starting the arbitration?

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2 minutes ago, WishIWasALawyer said:

The agreement says they have to start the arbitration. Does it matter? What if they don’t ever file, is it over? And what if I file when they weren’t going to file?

You asked the court to go to arbitration, the court granted YOUR motion.  If this were me, I would file it.  I never understand playing around with "who files".  Filing arbitration is the easiest step.  Not only that, but being the Claimaint in arbitration gives you a little extra leverage.  So just file it.

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