Stubis

Midland Funding Lawsuit...

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The Judge issued a tentative ruling today that I do not understand. 

I had submitted a Motion To Continue Trial so that we could have the Hearing for the MTC Arbitration before the Trial date. Today the Judge denied the Motion To Continue Trial because "the Defendant failed to file a Memorandum of Points and Authorities or a declaration in support as required by CRC 3.1112". 

 Then, the Tentative Ruling continues with: 

"However, on the Court's own motion, the Trial Date currently set for October, is hereby continued to (a date in December).  Moving party's attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order". 

So, it appears that the Judge is allowing me to have the hearing for the MTCA prior to the Trial date...???

 

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On 10/16/2019 at 7:44 PM, Stubis said:

The Judge issued a tentative ruling today that I do not understand. 

I had submitted a Motion To Continue Trial so that we could have the Hearing for the MTC Arbitration before the Trial date. Today the Judge denied the Motion To Continue Trial because "the Defendant failed to file a Memorandum of Points and Authorities or a declaration in support as required by CRC 3.1112". 

 Then, the Tentative Ruling continues with: 

"However, on the Court's own motion, the Trial Date currently set for October, is hereby continued to (a date in December).  Moving party's attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order". 

So, it appears that the Judge is allowing me to have the hearing for the MTCA prior to the Trial date...???

 

Sounds like the Judge is denying YOUR motion but is submitting THEIR motion to move the trail date. It is saying that you must formally serve this specific order to the plaintiff in accordance with CRC 3.1312.

As to your MTCA...

This would seem to mean that you now have time to submit a MTCA. All motions must be submitted and SERVED 16 COURT DAYS prior to the motion hearing date. Add 5 CALENDAR days if you are serving the motion via post office first class mail. Add 2 CALENDAR days if serving with overnight mail. 

The MTCA must included a Memorandum of Points & Authorities. If not, it will be denied just the same. 

 

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"The MTCA must included a Memorandum of Points & Authorities. If not, it will be denied just the same." 

In my MTCA I cited a number of specific legal cases related to Arbitration.

 

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On 10/22/2019 at 7:23 PM, Stubis said:

"The MTCA must included a Memorandum of Points & Authorities. If not, it will be denied just the same." 

In my MTCA I cited a number of specific legal cases related to Arbitration.

 


Your MTCA must be a separate document that is filed along with your MoPA. Although you can cite cases on your MTCA, the MoPA is the place were you lay out your argument for the judge. 
 

So you need to separate documents:

1 MTCA - this must be on pleading paper. The hearing information must be included on the cover sheet along with the Reservation ID (if set using the online Court Reservation System). On this document you set forth your high level argument as to why you are seeking to compel arbitration. There are plenty of examples of this on the web. On this document, you must also attach the confirmation of the hearing that was produced from the CRS, at the end of the document.

2. Memorandum of Points and Authorities - this is a separate document that must also be on pleading paper and include a cover sheet with the case information. You can title this like “Memorandum of Points and Authorities in Support of Motion to Compel Contractual Arbitration and Stay Proceedings pending Arbitration”

Then you write your argument in 3 distinct sections. Intro, Argument (Referencing case law from federal and/or CA courts ONLY), and conclusion. 
 

Submit both at the same time and make sure you serve the Plantiff.

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On 10/22/2019 at 10:09 PM, Stubis said:

Yes. I have asked for the hearing for the MTCA to be on the 1st November. 

 

[Edit] nevermind, I see that you are working on resubmitting your MTC with the proper format.

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This is such a frustrating process. The judge denied my MTCA "without prejudice" because I filed it after the deadline. 

So now I start the entire process all over again...

 

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1 hour ago, Stubis said:
 

This is such a frustrating process. The judge denied my MTCA "without prejudice" because I filed it after the deadline. 

So now I start the entire process all over again...

Sorry to hear that. On the bright side, the code/deadlines will work to your advantage in this process. If the judge is a stickler for the code, then he/she should be a stickler against the plaintiff too.

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2 hours ago, Stubis said:

This is such a frustrating process. The judge denied my MTCA "without prejudice" because I filed it after the deadline. 

So now I start the entire process all over again...

 

What deadline? The rules of the court say that all motions must be filed and served 16 courts days before the hearing. Did you miss that deadline?

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Yes. I missed the deadline by a week, mainly because of the PG&E blackouts in Northern California. 

And yes, the Judge is a stickler for the rules, and that should eventually work in my favor. 

Funny thing...I have been to the Courthouse so many times now that I know the Clerks by their first names, and they know me. They have been extremely helpful on this journey.

  

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Finally...! After 6 months. The ruling from today's Hearing.
Defendant�s unopposed Motion to Compel Arbitration is granted.

In deciding a petition to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.

Here, it appears that an arbitration agreement exists and that the claims are covered within the scope of such agreement. Defendant has asserted his right to arbitration and has provided this court with a declaration in support which attaches the arbitration agreement at issue.

Thus, the motion is granted. This case is stayed pending arbitration. The currently set trial date is vacated. A case management conference is set for ............ at 9:00 a.m. in Dept. ... for status of arbitration.

Moving party is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

I want to thank everyone for their help and advice.

Now, on to Arbitration...!!

 

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3 hours ago, Stubis said:

Thus, the motion is granted. This case is stayed pending arbitration. The currently set trial date is vacated. A case management conference is set for ............ at 9:00 a.m. in Dept. ... for status of arbitration.

Even though you ran into a few bumps along the way, you didn't let it discourage you. 

Congratulations!  :cheerleader:

 

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On 12/6/2019 at 9:30 PM, Stubis said:

Moving party is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

Do not forget to comply with this part of the judge's order.  Nice work!

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Thanks for all your help, fisthardcheese...!! I had a little more stress added to this journey as it took more than a week for the Judge to sign the Formal Order that I had drafted and submitted on the Monday morning after the hearing. Kept getting excuses from the clerks office, and panicked that maybe I’d done something wrong. Turns out they hadn’t taken me off the docket for my Trial date The following week and had not sent the Order to the Judge. Trial date came and went, the Judge signed the Order, I mailed it, and the Proof of Service was filed. 

Now on to the next step of this journey. 

Merry Christmas...!!! 

 

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I need a little more help. I keep procrastinating on completing the AAA application and time is running out.  

The problem is that my original summons was for two separate credit card debts of $2500 and each has a very different Arbitration Clause. (BTW, I DID check with the court to see if this was legally permitted way back when I first reached out to this group, and the Court confirmed that it was).

So, do I choose the one that is the most favorable to me, or...? I am thoroughly confused. Both agreements allow for me to choose AAA, but one (Synchrony Bank) states the following: "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. " So, this one I like. 

Would love your thoughts on this. 

Thank you in advance...

 

 

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2 hours ago, Stubis said:

I need a little more help. I keep procrastinating on completing the AAA application and time is running out.  

The problem is that my original summons was for two separate credit card debts of $2500 and each has a very different Arbitration Clause. (BTW, I DID check with the court to see if this was legally permitted way back when I first reached out to this group, and the Court confirmed that it was).

So, do I choose the one that is the most favorable to me, or...? I am thoroughly confused. Both agreements allow for me to choose AAA, but one (Synchrony Bank) states the following: "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. " So, this one I like. 

Would love your thoughts on this. 

Thank you in advance...

 

 

You need to file two separate AAA cases, one for each card.  Send copies of BOTH filings to the opposing attorney.

What is the other OC card agreement from? You can initially file without sending the $200 if you need to, and depending on which card agreement you may not have to at all.

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The second agreement is with Citibank N.A.

Unfortunately I do not have the $200, still living in my car and trying to put two kids through College. 

Thank you for your help, and I will get these filed and sent ASAP. 

All the best...

 

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I have received a "Case Management Statement" from Midland Funding's Lawyers. 

Not sure what to do with it. There's a section asking for "Discovery" 30 days prior to trial, but there is no trial, because I have filed for Arbitration and I have to appear back in Court in three weeks for a Case Management Conference to provide an update on Arbitration...

Any thoughts?

Thank you,

Steve

 

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My suggestion if i am correct is that if you have a court order granting arbitration, then all discovery will happen under the rules of the arbitration forum and not the court.  If the attorney can get you to engage in discovery then they may claim you waived your right to arbitration.

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Just received this email from the lawyer representing MF. 

"I am the attorney handling your case for the Mandarich Law Group.  I noticed we have a hearing coming up on 3/23/20 and that we have not received discovery responses as of yet.  My client is interested in settling this case and I am open to dismissing the case and your discovery response if we can come to an agreement before the hearing". 

Not sure how to proceed...

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52 minutes ago, Stubis said:

Just received this email from the lawyer representing MF. 

"I am the attorney handling your case for the Mandarich Law Group.  I noticed we have a hearing coming up on 3/23/20 and that we have not received discovery responses as of yet.  My client is interested in settling this case and I am open to dismissing the case and your discovery response if we can come to an agreement before the hearing". 

Not sure how to proceed...

If it were me personally, i would respond in kind, and agree to mutual dismissal with prejudice. Seems they are looking for a way out of going into arbitration. If they will dismiss the lawsuit with prejudice you will dismiss the arb case with prejudice. 

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