TexasGirl8002

Help! Tried to file MTC Arbitration in Texas Justice Court and was told I had to have an attorney!

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2 hours ago, fisthardcheese said:

No.  I am pretty sure they did this in contrast to the court rules. Did the court grant the dismissal already?

The court doesn't have to grant it.  The Plaintiff can withdraw the case without prejudice at any time prior to trial commencing.  It is done.

8 hours ago, TexasGirl8002 said:

Is that permissible once arbitration has commenced?

Simply mailing the forms does not commence arbitration.  Your uphill battle in my opinion is also that the time frame is SO short between the mailing and receiving that JAMS had not started the case yet.  Until they notify you the case is received and open it is not started officially.  JAMS received the mailing on 7/25. That in no way means they opened it and started working on it that day. Have you even heard from them as of today that they started a case for you?

 

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4 minutes ago, Clydesmom said:

The court doesn't have to grant it.  The Plaintiff can withdraw the case without prejudice at any time prior to trial commencing.  It is done.

Simply mailing the forms does not commence arbitration.  Your uphill battle in my opinion is also that the time frame is SO short between the mailing and receiving that JAMS had not started the case yet.  Until they notify you the case is received and open it is not started officially.  JAMS received the mailing on 7/25. That in no way means they opened it and started working on it that day. Have you even heard from them as of today that they started a case for you?

 

No, I have not heard from JAMS that a case has been started. 

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****Update

@fisthardcheese, @Clydesmom

This afternoon, 8/6/19, I received an email notification from JAMS.

Attached was a Notice to All Parties which basically states that I have the right to arbitrate under the provided agreement.

Also, attached was the JAMS Consumer Minimum Standards and a certificate of service to me and Midland. 

What is my next move? Or should I leave well enough alone?

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1 hour ago, TexasGirl8002 said:

What is my next move? Or should I leave well enough alone?

You have two options.  1: send Midland letter stating the JAMS case is opened and you look forward to arbitration.  They should respond they are dropping the matter.  Or they could ask what it would take to get you to drop the arbitration.  THEN you issue your demands i.e. delete trade line, reimburse the JAMS fee you paid etc.  They dismissed before this and they cannot change their dismissal to without prejudice now.  Once you have a signed agreement from them you close the JAMS case.

Second is do nothing.  You have won. The goal is they drop the court case: they did.  They are not going to arbitrate.  You can sit and do nothing until JAMS closes the file because Midland didn't pay their part.  Keep copies of EVERYTHING.  We have not seen any JDB try to come back after dismissing and not arbitrating but if by some weird planetary mix up they did you have a gold plated defense in a second court case:  failure to arbitrate.  

Yes, a dismissal with prejudice was ideal but the Plaintiff beat you to it before you even got to a negotiating point.  Take the win and move on.  As I said earlier we have not seen a JDB try to come back and sue again after being slapped with the arbitration defense successfully.  I would let it go.

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On 8/6/2019 at 10:50 AM, Clydesmom said:

It isn't but you have no experience in TX courts to know that.

TX allows a dismissal after an answer is filed but the rules are silent on when a court order is in place.   It seems unlikely that many judges would be fine with attorneys getting out of their orders by simply non-suiting the case when they don't like the Court's order.  Of course, that would have to be challenged by the other side before the Judge would take action on it.

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@fisthardcheese

I guess I should call it a win and move on but it's very frustrating. I clearly had an MTC Arbitration granted, I properly notified the attorney of my intent to elect arbitration and I promptly sent my demand forms to JAMS. It seems very sneaky for the attorney to dismiss without prejudice as soon as I elected.

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I would let court go and not try to reopen the case there.  However, your arbitration is technically still pending, correct?  I would try to send the attorney a settlement offer saying you will dismiss the court ordered arbitration case against their client in exchange for a mutual release agreement.

A "mutual release" settlement would be worded that you are released of all liability regarding the account and debt.  This would be just as good as a dismissal with prejudice.

I don't know if they will respond or just ignore the entire arbitration until it's closed anyway, but it's worth a shot imo.

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8 hours ago, fisthardcheese said:

I would let court go and not try to reopen the case there.  However, your arbitration is technically still pending, correct?  I would try to send the attorney a settlement offer saying you will dismiss the court ordered arbitration case against their client in exchange for a mutual release agreement.

A "mutual release" settlement would be worded that you are released of all liability regarding the account and debt.  This would be just as good as a dismissal with prejudice.

I don't know if they will respond or just ignore the entire arbitration until it's closed anyway, but it's worth a shot imo.

I agree.  Good advice here. 

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****Update

@fisthardcheese, @Clydesmom

Quote

I would let court go and not try to reopen the case there.  However, your arbitration is technically still pending, correct?  I would try to send the attorney a settlement offer saying you will dismiss the court ordered arbitration case against their client in exchange for a mutual release agreement.

A "mutual release" settlement would be worded that you are released of all liability regarding the account and debt.  This would be just as good as a dismissal with prejudice.

I don't know if they will respond or just ignore the entire arbitration until it's closed anyway, but it's worth a shot imo.

 

Somehow I missed your reply in August about sending a settlement offer to the attorney. I opted to just drop the matter and consider the case won. However, I did have an open JAMS arbitration case that did not close until November 11th, 2019. JAMS finally closed the case because Midland never paid the filing fee off $1500.00 to commence arbitration. I kept all documentation and correspondence during this time. Yesterday I was served again for the same lawsuit and have to file an answer with the court. I am hoping to file an answer using failure to arbitrate as a defense. Your advice is greatly appreciated.

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4 hours ago, TexasGirl8002 said:

Yesterday I was served again for the same lawsuit and have to file an answer with the court. I am hoping to file an answer using failure to arbitrate as a defense. Your advice is greatly appreciated.

This is a first but yes, you need to invoke their failure to follow through with arbitration as a defense.

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16 hours ago, Clydesmom said:

This is a first but yes, you need to invoke their failure to follow through with arbitration as a defense.

I'm not sure how to proceed. Do I follow exactly the same steps as last time? Previously I filed a general denial and used Arbitration and Award as an Affirmative Defense. I then filed a Motion to Compel Arbitration. How or where do I cite my defense of failure to arbitrate? I did not see that as one of the options for Affirmative Defense. I would be happy to start a new thread if needed. Thank you for your response.

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10 hours ago, TexasGirl8002 said:

I'm not sure how to proceed. Do I follow exactly the same steps as last time? Previously I filed a general denial and used Arbitration and Award as an Affirmative Defense. I then filed a Motion to Compel Arbitration. How or where do I cite my defense of failure to arbitrate? I did not see that as one of the options for Affirmative Defense. I would be happy to start a new thread if needed. Thank you for your response.

I'm not sure how to proceed. Do I follow exactly the same steps as last time? Previously I filed a general denial and used Arbitration and Award as an Affirmative Defense. I then filed a Motion to Compel Arbitration. How or where do I cite my defense of failure to arbitrate? I did not see that as one of the options for Affirmative Defense. I would be happy to start a new thread if needed. Thank you for your response.

@fisthardcheese please help.

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The deadline to file is March 3rd. I'm not sure if I should just follow the same course of action as last time or if I can beat this another way. Can I counter sue for breach of contract? Is there some sort of violation I can use? I have been doing my research but have not been able to find anything fitting this situation.

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45 minutes ago, Brotherskeeper said:

Please don't start a new thread. All of your information/history is in this one. @BackFromTheDebt do you have any advice?

When is the deadline to file your answer? 

 

The deadline to file is March 3rd. I'm not sure if I should just follow the same course of action as last time or if I can beat this another way. Can I counter sue for breach of contract? Is there some sort of violation I can use? I have been doing my research but have not been able to find anything fitting this situation.

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@TexasGirl8002 Do you happen to know if, under your Texas rules, plaintiff files a non-suit again, does the second one act as a dismissal with prejudice? 

I am not a lawyer and unfamiliar with Texas rules. Are you required to include a copy of the proposed judge's order with your motion to compel for the judge to sign? If you plan to file your motion to compel arbitration and stay the case like you did the last time, you might include a place on the proposed order for the plaintiff to stipulate to the order (and/or waive a hearing if applicable) and sign. If you send a copy of the MTC with this order to the plaintiff before you file it with the court, you'll have a chance to see how they react before you have to actually deal with the judge. 

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This is a complicated issue.  

I once had a case in which the law firm filed in small claims AFTER I sent them the JAMS paperwork for arbitration.  I notified the law firm, and they immediately filed for a dismissal w/o prejudice.  In a short time we agreed to have them file for a dismissal WITH prejudice in exchange for me not filing FDCPA claims against them.

If you have enough time before your answer, I would send a letter to the law firm.  Calmly spell out what they have done, and that you believe this to be an FDCPA violation -- taking an action they are not legally permitted to take (that is, the case had already been moved to arbitration).  Give them a short time to withdraw the case.  Make an offer that you will not pursue FDCPA charges against them in return for a dismissal with prejudice.  Make sure the final agreement has language that the debt cannot be sold, etc.

 

If you don't have the time, here are some possible affirmative defenses:

1. Improper venue.  The contract forbids the case from being tried in court after arbitration has been filed.  You filed, they ignored, they cannot simply take the case back to arbitration.  This is a strong defense, and could be the basis for a dismissal with prejudice.  

2. res judicata.  Another magistrate already ruled that the case should be heard in arbitration.  They ignored arbitration, therefore the case has been decided.  This isn't as strong, but might work.

 

In addition, you almost certainly have them on an FDCPA violation.  If they don't agree to a dismissal with prejudice in exchange for not filing FDCPA charges against them, you should consult a consumer attorney right away.  You have a strong FDCPA case against the law firm, as well as a strong breach of contract case against the plaintiff.  

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Unfortunately because they used the loophole of TX not having a rule like most other states that requires a stipulated dismissal only after an answer is filed, you just have to go through everything again just like last time.  The outcome should be exactly the same as well, except this time when they dismiss after your MTC is granted, you force them into a dismissal with prejudice.  Since this is their second bite at this, there MAY be a court rule stating a second dismissal is automatically with prejudice or acts as a ruling on the merits of the case, which will be good for you.

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1 hour ago, BackFromTheDebt said:

2. res judicata.  Another magistrate already ruled that the case should be heard in arbitration.  They ignored arbitration, therefore the case has been decided.  This isn't as strong, but might work.

This is not the case, however, because the Plaintiff dismissed that action after the MTC was granted.  I don't believe the stay and MTC which was granted can be considered res judica from a dead/dismissed case.

I don't see it as that complicated.  You  just go through the exact same motions as last time.

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2 hours ago, fisthardcheese said:

This is not the case, however, because the Plaintiff dismissed that action after the MTC was granted.  I don't believe the stay and MTC which was granted can be considered res judica from a dead/dismissed case.

I don't see it as that complicated.  You  just go through the exact same motions as last time.

Should I send a letter to the attorney electing arbitration before I file my answer? Last time I did not elect arbitration until after the MTC was granted. 

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