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Banana

Need Help w/ Midland case in California

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Hi guys, 

I posted a prior thread but not getting much response. I initially intended to settle without an attempt to defend or arbitrate, but now I am trying to figure out the mtc arb route. I rewrote prior posts trying to shorten/clarify/be more specific with my questions, and bumped.

I'm not confident I can successfully get through this process w/out some help, even though I have poured over this site and Googled until I am exhausted. I have only until tomorrow to pay the settlement agreement that I negotiated with them, so I have to go one way or the other by end of tomorrow. 

Can anyone help by answering my questions and checking out my affidavit draft on original thread? If no one has time, I think I may fold and pay current agreement. I am not confident in pulling off fighting them without being able to check in and get help on documents. 

I have to answer either way to protect against judgement, which is why I was thinking heck with it, I may as well fight. If they won't walk away, maybe they will offer a lower settlement (offer currently around 80% and they won't budge further, but I haven't answered complaint yet, so they figure they don't have to go lower.) 

All info on original thread. JDB is Midland, op is synchrony with arb clause. California (possibility of cp98 visitation defense too, but that's a lot of paperwork to file without screwing anything up, so if they most likely won't follow into arb, I think I'd prefer that route.)

I'm truly grateful for any help you can offer. 

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1 hour ago, Banana said:

Hi guys, 

I posted a prior thread but not getting much response. I initially intended to settle without an attempt to defend or arbitrate, but now I am trying to figure out the mtc arb route. I rewrote prior posts trying to shorten/clarify/be more specific with my questions, and bumped.

I'm not confident I can successfully get through this process w/out some help, even though I have poured over this site and Googled until I am exhausted. I have only until tomorrow to pay the settlement agreement that I negotiated with them, so I have to go one way or the other by end of tomorrow. 

Can anyone help by answering my questions and checking out my affidavit draft on original thread? If no one has time, I think I may fold and pay current agreement. I am not confident in pulling off fighting them without being able to check in and get help on documents. 

I have to answer either way to protect against judgement, which is why I was thinking heck with it, I may as well fight. If they won't walk away, maybe they will offer a lower settlement (offer currently around 80% and they won't budge further, but I haven't answered complaint yet, so they figure they don't have to go lower.) 

All info on original thread. JDB is Midland, op is synchrony with arb clause. California (possibility of cp98 visitation defense too, but that's a lot of paperwork to file without screwing anything up, so if they most likely won't follow into arb, I think I'd prefer that route.)

I'm truly grateful for any help you can offer. 

I'm not in California, but things don't differ THAT much state to state.

Keep things as simple as possible.  Don't get complicated.  Complicated is what messes you up and causes you to lose.

Here is what you need to do:

1. Write up a MTC.  Reference the ATT case in the MTC. 

2. Check with your court about the proper procedure for filing and scheduling motions.  This is important.  For example, the county I am in has different rules from any other county in the state, and probably has different rules from your jurisdiction.  

3.  File the MTC with the court.

4. Do whatever you need to do to have the motion hearing scheduled.  In some jurisdictions YOU have to schedule, in others the Court will do the scheduling.  How do you know what to do?  Because of step 2.

5. It would probably be a good idea to put together a JAMS filing before the hearing.  Not always necessary.  I never did.  

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Ty!! So would you think I'm OK to go stay w/ general denial that's completed already (but not filed/served? 

In my court I can't file answer and mtc simultaneously because they are filed in different buildings. Do I have to the mtc right after (within a day or two) of answer, or can I take some time to draft and file it later as long as I put it as an affirmative defense on answer? (Or do my court rules determine this?) 

 

Thanks for helping.

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42 minutes ago, Banana said:

Ty!! So would you think I'm OK to go stay w/ general denial that's completed already (but not filed/served? 

In my court I can't file answer and mtc simultaneously because they are filed in different buildings. Do I have to the mtc right after (within a day or two) of answer, or can I take some time to draft and file it later as long as I put it as an affirmative defense on answer? (Or do my court rules determine this?) 

 

Thanks for helping.

You need to know your court rules.  Maybe a Californian on this board will see this thread.  

If you are doing both a denial AND a MTC, I would certainly include arbitration as an affirmative defense (improper venue).  Back in the early days of arbitraiton I got a judge to grant me arbitration just because I had it as an affirmative defense.  SOMETIMES that is good enough.  Not always.  

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I read your response yesterday morning but didn't get to respond until now. I appreciate you writing back. Thanks for your help. I will submit the answer next week. I found a guide from sac law library website on proper way to write a motion for our court rules so I will file that at a later date. 

 

Thanks again! 

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Good morning. I'm checking my court rules (Sacramento County - Civil Case) and Motion to Compel Arbitration is not on the quick reference sheet. I am trying to figure out the required amount of time to do everything (notify the other side and such). I attached the guide. 

Also, the court hasn't posted my answer to the docket yet, so there is no trial date. Do I have to wait until the answer is posted to set the hearing and file the motion? 

Thanks for your advice? 

Banana 

@Goody_Ouchless, @fisthardcheese@Harry Seaward, @calawyer

 

motion-quick-reference-list.pdf

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Hi, Banana!  Neighbor way to the south (San Diego) here.

What I found helpful was to Google the court your case is assigned to (like Department 69 for mine).  Many courts in California keep pretty detailed websites, and you can find a lot of information by looking them up directly.  If nothing else, you should be able to find a phone number for the judge's clerk.  Speak to the clerk, tell them what you're trying to do, and they can guide you on what needs to be done and/or point you to where you can find that information.  While general rules may be identical from one court to another, every judge runs their department in their own way.  Learning what your specific judge requires is vital.

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Hello! Thankful to hear from another Californian! Thank you for reading my post and taking the time to answer. In Sac, there is a motions judge who hears motions, but I'm unsure if there is more than one judge (I would think so).

I can still try to contact the clerk in the department, so thanks for that suggestion.

I have looked up where I file it (not in the main courthouse), what it must contain, and the format required. Looking at the update on what day's filings the court is working on, my response should be posted in the next few weeks. I think I have to wait for that because I think they will assign a trial date at that point. Then I can count how many days ahead I have to schedule the hearing for the motion to give enough time for the other side to respond before the hearing.

I am just anxious to get my MTC filed before they send their request for discovery. I'm not sure if they have to wait for the answer to hit the docket before sending their requests. I don't really know all the details of how this works. 

Banana

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17 hours ago, Banana said:

Good morning. I'm checking my court rules (Sacramento County - Civil Case) and Motion to Compel Arbitration is not on the quick reference sheet. I am trying to figure out the required amount of time to do everything (notify the other side and such). I attached the guide. 

Also, the court hasn't posted my answer to the docket yet, so there is no trial date. Do I have to wait until the answer is posted to set the hearing and file the motion? 

Thanks for your advice? 

Banana 

@Goody_Ouchless, @fisthardcheese@Harry Seaward, @calawyer

 

motion-quick-reference-list.pdf 70.36 kB · 0 downloads

All motion rules are generally the same, except perhaps a motion to dismiss.  Just follow the rules on filing a motion. Don't get hung up on the name of the motion.

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Hi all!  So I am drafting my MTC, and I paused when I read the passages from the sample MTC (copy pasted below). My question is are there  supposed to be blanks here:

Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3)

and here:

see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17).

from this:

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

@fisthardcheese

 

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The blanks are from an earlier time before the cases were officially reported.  You can google the case names and get the official citations.  And you won't need the citations to slip op. then, either.  That is also a reference to an opinion before it is officially published.

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Thank you, @nobk4me

The further I go on this, the more I worry I will not compose this correctly. In my court they use a tentative ruling system, so I have to submit a notice of Motion and Motion, Memorandum of Points and Authorities and Declaration (and the order). I will be ready for the bar when (if ) I get this done. Essentially I have to make the whole argument for the motiin in the documents I file. I'm pretty intimidated and doubting my ability to get this right. 

Last night I read about "landing" the citations, and that if you don't include this the court can disregard your citations. I'm not sure if that is done in my local court. There is nothing about landing citations in the "how to" instructions I located for filing a motion in my local court. I am afraid of putting the statutes in the wrong order or citing something incorrectly and the other side using my technical error to have the whole thing denied. 

I have been reading "Represent Yourself in Court" by Paul Bergman. It's not specific to CA, but has a lot of good info that has been helpful.

The other side hasn't sent any discovery requests and hasn't contacted me to agree on possible trial dates (we are supposed to confer, and submit an online form with 3 agreed dates). I haven't scheduled the hearing for my motion yet because I'm not sure how much longer it's going to take me to draft the rest of it. 

Reading tonight that Midland paid the fee to follow the Kentucky fellow into Arb has me more than a bit concerned. I hope when they get that second bill they will fold. I will be following his thread closely. 

 

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