Beachykeen

Being Sued by Midland Credit in Florida ~ Please help

Recommended Posts

1 hour ago, Brotherskeeper said:

@Beachykeen (I am not a lawyer.) As I understand from previous Florida posters, a defendant can waive the right to arb if it isn't asserted in the Answer. You haven't filed an answer. I know fisthardcheese wisely advises to keep things simple in a MTC. Even though the US Supreme Court ruling is the law Florida must follow, Florida has decided that (3) waiver below is a consideration that its courts can determine. I don't see the harm in including these 2 citations as #7 in your motion to compel. Then the current #7 become #8. 

 

7.  "We have held that under both the Federal Arbitration Act and Florida's Arbitration Code there are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)).

"Florida courts have recognized "arbitration [a]s a favored means of dispute resolution," and, as so, this Court "should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it." EMSA Ltd. P'ship v. Mason, 677 So. 2d 105, 107 (Fla. 4th DCA 1996) (quoting Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988))." Ibis Lakes Homeowners As-sociation, Inc. v. Ibis Isle Homeowners As-sociation, Inc., 102 So. 3d 722, 728 (Fla. 4th DCA 2012). Defendant asserts there is 1.) a valid, enforceable, written agreement to arbitrate the disputes of the subject account, 2.) the disputes fall within the arbitrable claims under the Agreement's arbitration clause, and 3.) Defendant has not engaged in active participation in litigation or other acts inconsistent with the right upon learning of the right.

8. The Defendant elects private arbitration via JAMS, pursuant to the Cardmember Agreement to settle this dispute.

Those are good cases.  If you don't have time to add that to your MTC for today, just bring them with you in notes and you can refer to them verbally if the attorney opposes your motion.

If you DO add them to your MTC, I would mention in your conclusion that all 3 elements have been met. That there is a valid agreement to arbitrate, that the nature of your disputes fall under that agreement to arbitrate and that you have not participated in any litigation inconsistent with the right to arbitration upon discovering the arbitration agreement. I would also add something along the lines of 'as such, being that all elements have been met, as a matter of law, Defendant's Motion to Compel Private Arbitration should be granted'.

  • Like 1
Link to post
Share on other sites
9 minutes ago, fisthardcheese said:

If you DO add them to your MTC, I would mention in your conclusion that all 3 elements have been met. That there is a valid agreement to arbitrate, that the nature of your disputes fall under that agreement to arbitrate and that you have not participated in any litigation inconsistent with the right to arbitration upon discovering the arbitration agreement.

 

It's in there in paragraph 7:

7.  "We have held that under both the Federal Arbitration Act and Florida's Arbitration Code there are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)).

"Florida courts have recognized "arbitration [a]s a favored means of dispute resolution," and, as so, this Court "should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it." EMSA Ltd. P'ship v. Mason, 677 So. 2d 105, 107 (Fla. 4th DCA 1996) (quoting Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988))." Ibis Lakes Homeowners As-sociation, Inc. v. Ibis Isle Homeowners As-sociation, Inc., 102 So. 3d 722, 728 (Fla. 4th DCA 2012). Defendant asserts there is 1.) a valid, enforceable, written agreement to arbitrate the disputes of the subject account, 2.) the disputes fall within the arbitrable claims under the Agreement's arbitration clause, and 3.) Defendant has not engaged in active participation in litigation or other acts inconsistent with the right upon learning of the right.

12 minutes ago, fisthardcheese said:

as such, being that all elements have been met, as a matter of law, Defendant's Motion to Compel Private Arbitration should be granted

^^^excellent suggestion.

@Beachykeen

9.  As such, being that all elements have been met, as a matter of law, Defendant's Motion to Compel Private Arbitration should be granted. 

  • Like 1
Link to post
Share on other sites

@Brotherskeeper @fisthardcheese I wasn't able to incorporate all of it ~ I had to leave to get things notarised and I live a bit aways from the courthouse, so I had to make sure I got there on time WRT traffic and all. I did get your suggest, Brotherskeeper, on including the precedents 7 & 8. But I didn't get 9. :(

So, here's what happened yesterday. It's a bit long and I do apologise for that. 😕 I will bold the bits that are less my rambling and more factual. x

Frankly, I'm a bit disheartened. When I arrived, the bloke (a lawyer, I'm presuming ~ thought not one of the ones listed in the suit) was already there. He was the one the judge had me go off and mediate with. He's a nice sort, actually. Thought I don't know how far to trust that niceness since he is, obviously, not on my side, and doing his job. 

Anyway, I got there about an hour early, prepared to sit and wait. After about 10 minutes he came over and sat down next to me, and asked about settling. He wanted to know if Midland had contacted me (they had, but only with a letter saying "We're suing you, pay us now") and wanted to know if I wanted to discuss settling before we went in. I told him no, that I was going to request arbitration. He seemed a bit surprised at that. We made a bit of small talk and went in a few minutes later.

Inside, the judge asked what we were about and I said that I wanted to file a motion to compel arbitration. He said, and I quote "I'm not going to entertain that motion since you didn't file it." I said that I realised I was tardy, but my intent was to file it in person. He repeated again that it'd not been filed, but he'd allow a continuance ~ if the plaintiff didn't object. Well, of course he wasn't going to object ~ THEY had requested a continuance earlier and been denied. 

I ended up filing the MTC later that day, just to be on the safe side.

So, may I ask @fisthardcheese @Brotherskeeper , do I continue on and initiate the arb? Or do I wait and see? I currently have a continuance, and the judge tends to take roughly 10 days to rule on motions (to be honest, since Hurricane Michael, the courts have been rather tied up with insurance small claims, so they're quite busy). What do I do, please?

And I REALLY can't thank you both (and @BV80) for all of your absolutely SUBLIME help. I couldn't have made it this far without you. Before you, I was ready to throw in the bloody towel and take the piss. ❤️

 

Link to post
Share on other sites
55 minutes ago, Beachykeen said:

@Brotherskeeper @fisthardcheese I wasn't able to incorporate all of it ~ I had to leave to get things notarised and I live a bit aways from the courthouse, so I had to make sure I got there on time WRT traffic and all. I did get your suggest, Brotherskeeper, on including the precedents 7 & 8. But I didn't get 9. :(

So, here's what happened yesterday. It's a bit long and I do apologise for that. 😕 I will bold the bits that are less my rambling and more factual. x

Frankly, I'm a bit disheartened. When I arrived, the bloke (a lawyer, I'm presuming ~ thought not one of the ones listed in the suit) was already there. He was the one the judge had me go off and mediate with. He's a nice sort, actually. Thought I don't know how far to trust that niceness since he is, obviously, not on my side, and doing his job. 

Anyway, I got there about an hour early, prepared to sit and wait. After about 10 minutes he came over and sat down next to me, and asked about settling. He wanted to know if Midland had contacted me (they had, but only with a letter saying "We're suing you, pay us now") and wanted to know if I wanted to discuss settling before we went in. I told him no, that I was going to request arbitration. He seemed a bit surprised at that. We made a bit of small talk and went in a few minutes later.

Inside, the judge asked what we were about and I said that I wanted to file a motion to compel arbitration. He said, and I quote "I'm not going to entertain that motion since you didn't file it." I said that I realised I was tardy, but my intent was to file it in person. He repeated again that it'd not been filed, but he'd allow a continuance ~ if the plaintiff (the bloke I mentioned earlier) didn't object. Well, of course he wasn't going to object ~ THEY had requested a continuance earlier and been denied. 

Before excusing us, he (the judge) did his best to try to talk me out of arbitration ~ acting like I was a bloody stupid prat. I swear, I realise that in person I'm utterly shy and all that, and I have an accent (I'm Irish, though hell if anyone usually susses that out ~ I just sound like a foreigner, I guess), but I felt so talked down to. It was all I could do to not scream. Plus, I have blue hair, so that likely didn't help in our very conservative town. :eyeroll:

Funnily, the judge AND the bloke remarked that the guy before me elected arbitration, too, and that it was the first time THEY'D seen it in that courtroom in 14 years. LOL. 

Anyway, I reiterated that I wanted arbitration and we left. In the hallway, the bloke speculated on the arbitration. He talked about how expensive it'd be for ME. That afterwards, I shouldn't be surprised if it doubled what I'd have to pay. And I won't lie ... that scared the piss out of me. He mentioned AAA several times, and I said, no ... I was requesting JAMS. In fact, I said I'd already initiated it, I just had to fork over the $250. He said he'd never dealt with JAMS and had no idea what they were like.

We left the court together ( he walked me out) and we drove out of the car park. On the way home, I began thinking ~ what if THEY initiate the arbitration via AAA? Since I'd not actually filed anything (the judge said I could come back and do it later, since there was a continuance ~ but that he really wanted me to settle ASAP to get us off his docket), I thought "THEY could file a motion to compel arbitration via AAA and bugger me." So, I turned my arse around, ran inside, and asked the clerk if I could still file, despite typing on the MTC that I was filing in person. She said "Oh yeah, of course. That doesn't matter."

SO I DID.

As of 8pm last night, my MTC was showing up on the docket.

So, may I ask @fisthardcheese @Brotherskeeper , do I continue on and initiate the JAMS? Or do I wait and see? I currently have a continuance, and the judge tends to take roughly 10 days to rule on motions (to be honest, since Hurricane Michael, the courts have been rather tied up with insurance small claims, so they're quite busy). What do I do, please?

And I REALLY can't thank you both (and @BV80) for all of your absolutely SUBLIME help. I couldn't have made it this far without you. Before you, I was ready to throw in the bloody towel and take the piss. ❤️

 

I, believe that i mentioned yesterday, to show up and file your motion prior to going into the court room, that way your motion would be heard.

  • Like 1
Link to post
Share on other sites
Just now, Robby8900 said:

I, believe that i mentioned yesterday, to show up and file your motion prior to going into the court room, that way your motion would be heard.

You did, and I do wish I'd taken your advice. I had already typed everything up and had the bit at the bottom saying "served in person" and I really didn't know if they could be filed to the clerk that way. Plus, I didn't know how long it'd take between filing via clerk and the judge getting the MTC. On the one hand, I don't know how advanced WE are here in this area ~ on the other hand, I don't know what's possible. I was quite surprised that my MTC, that I'd filed literally with only half an hour left on the clock for business hours, was added to the website that evening. o_O

Then add to all that, I left the house about 2-3 hours prior to my court date getting shite notarised. 😕

Basically, I'm a mess. And I'm terrified. 

I really do appreciate your advice ~ and I really do wish I'd taken it. x

Link to post
Share on other sites
55 minutes ago, Beachykeen said:

I said, no ... I was requesting JAMS. In fact, I said I'd already initiated it, I just had to fork over the $250.

I missed this in your thread. You've already filed a demand with JAMS on this? Fist usually advises printing out the JAMS paperwork to bring to the motion hearing, but waiting to actually file a claim demand until your motion is granted and you have a copy of the judge's order. 

JAMS Consumer Arbitration Minimum Standards

"7.  With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration."

I think you did great! You went in for a trial. I don't know Florida rules, but that sounds like you could have come out with a judgment against you. You didn't. The judge granted a continuance. You filed your motion. He wants your case off of his docket. 

I don't know if this is still the case, but several members here in the past have filed in AAA against Midland. Absent a court order attached to the demand, AAA sends a letter stating they will not arbitrate claims with Midland, as Midland is not in compliance with AAA policies. So, I seriously doubt Midland is going to intiate arb in AAA before your motion is heard. 

Link to post
Share on other sites
Just now, Brotherskeeper said:

I missed this in your thread. You've already filed a demand with JAMS on this?

I wasn't sure if I'd mucked that up. I hadn't actually initiated it, but I said I had and had just to pay the fee to the lawyer lad at court. My thinking, at the time at least, was that I wanted to head off THEM initiating the claim. I wanted them to believe, lock, stock and barrel, that I had the upper hand.

Fist usually advises printing out the JAMS paperwork to bring to the motion hearing, but waiting to actually file a claim demand until your motion is granted and you have a copy of the judge's order. 

I did have it printed ~ in bloody triplicate. I was ruddy terrified to not have all me eggs in the right basket.

TBH, I even had my own affidavit notarised, in case I had to pass it over to the judge or the lawyer bloke. The notary even laughed and teased that I was really prepared. 😂 

JAMS Consumer Arbitration Minimum Standards

"7.  With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration."

The bloke ~ bloody hell, the judge for that matter ~ had no clue about JAMS. They both looked absolutely flummoxed when I'd mentioned it. 😂

The lawyer bloke did make a grand point of mentioning how expensive arbitration would be for ME. How they would make ME pay everyone's fees at the end of the bit. Whilst I was taken aback and momentarily scared, I did think that he might be saying that to scare me.

To reiterate, I do think he's a nice lad. I've seen where people can be utter arse-weasels when given even a bit of authority and he's made every attempt to be kind ~ he doesn't have to do that, I know. He could be an utter plonker if he wanted. But his being kind doesn't mean he's my mate; he's still there doing a job for ~ dare I say ~ a company with a shite reputation, who basically buys the debts of people who can't pay them, upps the charges and tries to get even more from people who couldn't pay less.

I think you did great! You went in for a trial. I don't know Florida rules, but that sounds like you could have come out with a judgment against you. You didn't. The judge granted a continuance. You filed your motion. He wants your case off of his docket. 

I appreciate your kind words, but all I did was what you mates told me to. ❤️ And you have no idea how much I absolutely appreciate all of your help. ❤️

That said, I don't know if it was a trial ~ one moment it seemed like it WASN'T (everyone kept saying it was just "judge's chambers"), but the judge, when denying my MTC, said "you should have filed it before coming to trial." So, I've no idea. 

I really wish I'd taken @Robby8900's advice and filed it that hour before court. I honestly didn't know if it'd be seen by the judge in time and I was afraid that I'd be DENIED denied.

I don't know if this is still the case, but several members here in the past have filed in AAA against Midland. Absent a court order attached to the demand, AAA sends a letter stating they will not arbitrate claims with Midland, as Midland is not in compliance with AAA policies. So, I seriously doubt Midland is going to intiate arb in AAA before your motion is heard. 

Oh. I didn't know that. Does that mean that THEY will be okay with JAMS? I'd rather not go into arbitration at all, if I can avoid it. But if I have to, I will. I've literally got nothing to lose. As they say, in for a penny, in for a pound. 

I feel like I'm playing chess with these lads. And since a DX of MS a few years back, my filter's completely buggered so I have no idea how I'm doing at it anymore. o_O

May I ask if you think there's anything I ought to be doing at this moment? Or should I wait and see what Midland does?

And sommat that's been bugging me ~ does anyone think the JDBs might be monitoring these boards? I'll not lie, the whole time I was talking to the judge and the lawyer lad, I wondered that. 😶

Link to post
Share on other sites
4 minutes ago, Beachykeen said:

May I ask if you think there's anything I ought to be doing at this moment? Or should I wait and see what Midland does?

I think reading up on your court rules for motions (is your motion also technically a motion in lieu of an answer?) and researching Midland's opposition to arbitration memorandum might be useful. I would also reread Fist's arbitration thread. Motioning to compel arbitration in court is a strategy used to gain advantage where possible. It is not used to win in the end by having the arbitrator rule in your favor--unless you have valid consumer law violations you can bring. 

The judge isn't wrong that you have better protection in court than in arbitration. He's looking at it from the perspective of you as a pro se going through the entire arb process. If you were to go all the way through the arb process--with Midland on the hook for high fees to get through it--you might have a higher amount awarded to them. Because your case is for $2500, it would take Midland coughing up a lot of money to take it to an award stage. I think a settlement would be more likely than an award in this instance. Oh, Midland (as a defendant) will quickly motion to compel arb with a FDCPA claim against it, but does not appear to go very far, if at all, into arb with a claim like yours. (Just my stranger in an online forum opinion. YMMV.) 

 

Link to post
Share on other sites
36 minutes ago, Beachykeen said:

And sommat that's been bugging me ~ does anyone think the JDBs might be monitoring these boards? I'll not lie, the whole time I was talking to the judge and the lawyer lad, I wondered that. 😶

Well, if they were monitoring this, they would've been prepared to go to trial last night, since you weren't prepared to defend, and to ward off your motion to compel, right? 

  • Like 1
Link to post
Share on other sites
14 minutes ago, Brotherskeeper said:

I think reading up on your court rules for motions (is your motion also technically a motion in lieu of an answer?)

I honestly don't know. Its a motion to stay proceedings pending arbitration. May I ask how I'd know (or how I could find out) if it's in lieu of answer?

and researching Midland's opposition to arbitration memorandum might be useful.

I'll look that up, thank you!! I'd not heard of it. x

I would also reread Fist's arbitration thread.

I have been OBSESSIVELY pouring over it. That and Linda07's earlier, though possibly out-dated, thread on strategy and steps to arbitration thread. Both brilliant, if ofttimes confusing, reads.

Motioning to compel arbitration in court is a strategy used to gain advantage where possible. It is not used to win in the end by having the arbitrator rule in your favor--unless you have valid consumer law violations you can bring. 

They stated that they contacted me prior to going to court, but they hadn't. It's a tenuous claim at best, likely, but we've had horrid problems with our mail. There for a bit, I had to have magazines delivered via FEDEX simply because the mail was so unreliable. 😕

The judge isn't wrong that you have better protection in court than in arbitration. He's looking at it from the perspective of you as a pro se going through the entire arb process. If you were to go all the way through the arb process--with Midland on the hook for high fees to get through it--you might have a higher amount awarded to them.

When you say "higher amount awarded to them" do you mean that I might have to pay Midland's portion of arbiter's fees after all? Or that if they asked for $2500 they'd get it, versus a judge potentially awarding less?

I can't see where a judge, much less this judge, would award less than what Midland's asking for. He seemed quite chummy with the lawyer bloke. I'm not implying that he'd be improper or anything, just that if he respects the lawyer, he'd be more inclined to respect the lawyer's word on what's owed.

Because your case is for $2500, it would take Midland coughing up a lot of money to take it to an award stage. I think a settlement would be more likely than an award in this instance.

I'm sorry, I don't think I follow. Do you mean it would take a lot of money to get to where Midland's awarded $$ from me? Or where I'd be awarded $$ from Midland based on FDCPA claims?

I'm actually open to a settlement. But they wanted either $1500ish in one lump sum or $2000 in 6 payments ~ neither of which are in the cards. 

Oh, Midland (as a defendant) will quickly motion to compel arb with a FDCPA claim against it, but does not appear to go very far, if at all, into arb with a claim like yours. (Just my stranger in an online forum opinion. YMMV.) 

I'm not really the sort, I think, to claim something that I don't think is valid. I don't like being false at all ~ it gives me the upsets. I'd really rather this die off OR settle in a way that's realistic for me.

I might not be understanding what you mean, though. 😕

 

 

Link to post
Share on other sites
6 minutes ago, Brotherskeeper said:

Well, if they were monitoring this, they would've been prepared to go to trial last night, since you weren't prepared to defend, and to ward off your motion to compel, right? 

Truer words never spoken. x

Still, they might not have known it was me. Now, they likely would, seeing as how I've mentioned particulars. 😕

I think I'm paranoid. This has just really gotten me edgeways to arseways. I mean, I'm as steely as the next person, and I'll go through whatever I have to, but ... erugh.

Plus, and this is just musing, of course, THEY were the ones who asked for the continuance that was initially denied. I'd think that the one that was awarded to me had to have been beneficial to THEM, too. I'm not going to think it was any kindness directed at me, at least. They're not in the business of being kind. 😕

 

Link to post
Share on other sites

@Beachykeen If you're worried about the personal identifying info you've posted, go back and hit the "edit" button at the bottom, and remove hair color, etc.  Leave the important details that allow members to know enough to give accurate help. 

You are a business decision to this plaintiff. They sent a demand prior to filing suit hoping you would react with a payment. You didn't receive the demand. When they filed the lawsuit, they hoped you wouldn't respond and they would get a default judgment; failing that, the lawsuit would alarm you to enter into a payment program. These things didn't happen. They've now sent an attorney to court twice, and this still isn't put to bed for them. Now that you've filed your motion, they have to work on a response. If there's another hearing, they have to send an attorney prepared for oral argument. If your motion is granted, they have to pay a JAMS fee. If they continue on, they have to start paying hefty fees in order to proceed. Again, you are a business decision. They've invested a certain amount in your debt and case. If they can get you to settle, they might come out ahead. If not, they will have to cut their losses at some point. 

I would never suggest that you allege frivolous or false consumer law violations claims in arb. Fist covers this in his thread. You may have plausible claims. If upon further evidence to the contrary, there's a point at which you may drop those claims. Again, Fist covers this. 

Link to post
Share on other sites
2 minutes ago, Brotherskeeper said:

@Beachykeen If you're worried about the personal identifying info you've posted, go back and hit the "edit" button at the bottom, and remove hair color, etc.  Leave the important details that allow members to know enough to give accurate help. 

You are a business decision to this plaintiff. They sent a demand prior to filing suit hoping you would react with a payment. You didn't receive the demand. When they filed the lawsuit, they hoped you wouldn't respond and they would get a default judgment; failing that, the lawsuit would alarm you to enter into a payment program. These things didn't happen. They've now sent an attorney to court twice, and this still isn't put to bed for them. Now that you've filed your motion, they have to work on a response. If there's another hearing, they have to send an attorney prepared for oral argument. If your motion is granted, they have to pay a JAMS fee. If they continue on, they have to start paying hefty fees in order to proceed. Again, you are a business decision. They've invested a certain amount in your debt and case. If they can get you to settle, they might come out ahead. If not, they will have to cut their losses at some point. 

I would never suggest that you allege frivolous or false consumer law violations claims in arb. Fist covers this in his thread. You may have plausible claims. If upon further evidence to the contrary, there's a point at which you may drop those claims. Again, Fist covers this. 

I absolutely wasn't insinuating that any of you have advised anyone to be duplicitous AT ALL. x

TBH, I'm so gobsmacked at all of this and I do feel guilty over the debt and what's brought me here that I guess I'm worrying that you might think I'm dishonest. And I wanted to make sure you knew I wasn't. Does that make sense? 

I'm not sure if you took what I'd said as implying that you *would* advise someone to be dishonest, but I wanted to clarify that I wasn't just in case.

And yes, I do think I'll edit those bits out. They don't add anything to the discussion and do make me uncomfortable. We're all anonymous using avatars and usernames for a reason, eh? 

And I do realise that I'm purely made of numbers and risk assessment to them; I guess I overestimate what a pain in the arsecheeks I can be and what lengths some might go to to give me comeuppance.

So, if I'm awarded the MTC and they don't want to follow me into JAMS, will the case just founder and die on it's own? Or will I have to submit something? If they refuse to follow me into arb, doesn't that constitute disobeying the order?

I do apologise for being so dense. x

Again, @Brotherskeeper, you, fisthardcheese, BV80 and Robby8900 have been absolutely brilliant and I really do appreciate all of your help. I hope I can return the favour one day. ❤️

 

Link to post
Share on other sites
1 minute ago, Beachykeen said:

I absolutely wasn't insinuating that any of you have advised anyone to be duplicitous AT ALL. x

I know. No worries. 

2 minutes ago, Beachykeen said:

TBH, I'm so gobsmacked at all of this and I do feel guilty over the debt and what's brought me here that I guess I'm worrying that you might think I'm dishonest. And I wanted to make sure you knew I wasn't. Does that make sense? 

Perfect sense. I don't know about other members here, but my working assumption is always that new members would pay what they thought they owed if they could, but they can't. People make mistakes or have bad unplanned-for things happen--or both. 

 

7 minutes ago, Beachykeen said:

So, if I'm awarded the MTC and they don't want to follow me into JAMS, will the case just founder and die on it's own? Or will I have to submit something? If they refuse to follow me into arb, doesn't that constitute disobeying the order?

Fist covers this. Let's get to your MTC being granted first. And yes, if plaintiff refuses to follow a court order, they're in violation of that order. 

Link to post
Share on other sites
31 minutes ago, Brotherskeeper said:

I know. No worries. 

I'm glad. I just wanted to make sure. x

Perfect sense. I don't know about other members here, but my working assumption is always that new members would pay what they thought they owed if they could, but they can't. People make mistakes or have bad unplanned-for things happen--or both. 

Absolutely. xo

Fist covers this. Let's get to your MTC being granted first. And yes, if plaintiff refuses to follow a court order, they're in violation of that order. 

I understand that if they continue to muck about with me in court, that they're not allowed to. I guess what I meant is if they decide to not follow me into arb, choosing rather to walk away, can they just let it die? Or do they have to file something to close it out. 

Meaning, can they drag this on forever, essentially?

 

Link to post
Share on other sites
19 hours ago, Beachykeen said:

I guess what I meant is if they decide to not follow me into arb, choosing rather to walk away, can they just let it die? Or do they have to file something to close it out. 

Meaning, can they drag this on forever, essentially?

If you look at your motion to compel, it is also a motion to stay the court case pending completion of arbitration. If granted, the case will not be dismissed. It will be stayed and the stay can be lifted. (IANAL) You could file a motion for sanctions back in court. If they wish to dismiss the court case, you'll need to check Florida rules to see if they first need to have your consent to do so, since you would have a motion and stay order in place.  

Link to post
Share on other sites
Just now, Brotherskeeper said:

@Beachykeen Have you read this Florida thread? My concern is at what point do you file an Answer with arb as an Affirmative Defense, or do you not need to file an Answer?

 

It's funny that you mention that ~ I just messaged him as I think he was the other bloke who stunned our judge by requesting arbitration!

His experience, with the exception of having his ducks in a row from the get-go (thanks to you here), was the same as mine. Our judge is not a fan of arbitration and did his level best to try to talk me out of it.

The judge I saw at no point intimated that I should have filed an answer or the motion at or before the pre-trial conference. His issue was simply (it seemed) that I didn't do it before my actual trial (what I thought was a meeting in judge's chambers, but really was a trial, apparently). He seemed to be aggrieved that I didn't file my MTC weeks or days ago and was springing it on him wildly.

What I've heard (mostly here in this forum) is that in Florida, even though judges can be quite the rogues, despite having law and precedents that make it easy for defendants to change their minds and request arbitration even AFTER answering, they're reluctant to listen.

I know for a fact that (hoping I don't jinx myself) he made no mention of my needing to have answered or elected to arbitrate back at the pre-trial.

Link to post
Share on other sites
5 hours ago, Beachykeen said:

Frankly, I'm a bit disheartened

Why though?  You got your continuance just as I suggested would likely happen AND you got your MTC filed.  It was not denied and you did not walk away with a judgement against you.  This is all positive and working just as we predicted before you went in.

40 minutes ago, Beachykeen said:

His issue was simply (it seemed) that I didn't do it before my actual trial

This is common and most judges will not rule on a motion that is brought up 'by surprise', which is why I went through all your options on how this will likely be continued previously.

 

5 hours ago, Beachykeen said:

do I continue on and initiate the arb?

Nope.  You don't move to the next step until the one you are at is completed.

5 hours ago, Beachykeen said:

What do I do, please?

You wait.

Midland will probably file an opposition to your motion.  This will allow us to see what arguments they may try to use against your MTC and we can help you find the responses and case laws to prove how very wrong their arguments are.  You can then file a reply to their opposition with those facts and laws to refute their points.  After this, the judge will either rule or ask for a hearing to better understand each side's arguments.  Either way you should come away with a granted MTC and then we can go over how to file in JAMS.

Link to post
Share on other sites
28 minutes ago, fisthardcheese said:

Why though?  You got your continuance just as I suggested would likely happen AND you got your MTC filed.  It was not denied and you did not walk away with a judgement against you.  This is all positive and working just as we predicted before you went in.

This is common and most judges will not rule on a motion that is brought up 'by surprise', which is why I went through all your options on how this will likely be continued previously.

 

Nope.  You don't move to the next step until the one you are at is completed.

You wait.

Midland will probably file an opposition to your motion.  This will allow us to see what arguments they may try to use against your MTC and we can help you find the responses and case laws to prove how very wrong their arguments are.  You can then file a reply to their opposition with those facts and laws to refute their points.  After this, the judge will either rule or ask for a hearing to better understand each side's arguments.  Either way you should come away with a granted MTC and then we can go over how to file in JAMS.

You're right, I know. x

I just still feel like this is all going much too fast and I'll get lost. I literally had nightmares all last night that I'd wake up to find my accounts frozen.

Stupid question (my superpower, LOL), but will there automatically be a hearing for my MTC or only if it's opposed? I mean, Midland filed several motions and I wasn't invited to any hearing about them, so I'm assuming there's only a hearing if  the other party objects, right? Or am I utterly wrong and the judge will call me in for a hearing on my MTC just to make me feel like a wanker?

Again, I am so sorry for all the daft questions. I really do appreciate every shred of wisdom you and the others are so kind enough to share! ❤️

 

Link to post
Share on other sites
3 hours ago, Beachykeen said:

I literally had nightmares all last night that I'd wake up to find my accounts frozen.

They would have to get a judgement first and then ANOTHER order granting their writ to garnish your accounts before anything like that could happen. And even then, you can settle with them after a judgement to prevent and writ of garnishment. You would have plenty of notice before any of that and the whole point of the MTC you have filed is to prevent all that.  So it's a non issue, really.

3 hours ago, Beachykeen said:

Or am I utterly wrong and the judge will call me in for a hearing on my MTC just to make me feel like a wanker?

The judge is not in the business of making people feel any way or another.  He is solely in the business of interpreting the law an applying that to cases in front of him.  This is only person to YOU because it involves your personal finances.  It is not personal to anyone else involved, only a job.

No one knows if there will be a hearing or not.  Every judge and every case has unique circumstances.  In the meantime, if this were me, instead of driving myself crazy waiting idly by, I would start ordering copies of my credit reports by calling the 800 numbers of all 3 CRAs and using their automated phone system to order a free copy of my reports by mail (using the reason of "adverse action" to get a free copy).  I would start looking closely at every collection letter I could find from this JDB and comparing the alleged amount owed in every letter as well as the amount they listed in the lawsuit.  I would look for any kind of inconsistencies I might find.  I would check my phone records and see if I have evidence of Midland calling my cell phone and save any evidence I find.  These items will help you later when it is time to file for JAMS.

Link to post
Share on other sites

@Beachykeen Here's a link to check out:

https://help.flcourts.org/legal-services-resources/

 

Florida Rules of Civil Procedure, pages 29-30

RULE 1.140. DEFENSES

(a) When Presented.
     (1) Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. A party served with a pleading stating a crossclaim against that party must serve an answer to it within 20 days after service on that party. The plaintiff must serve an answer to a counterclaim within 20 days after service of the counterclaim. If a reply is required, the reply must be served within 20 days after service of the answer.

[snip]

(b) How Presented. Every defense in law or fact to a claim for relief in a pleading must be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses must be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued must be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated must be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply must be asserted by motion to strike the defense within 20 days after service of the answer or reply.

(d) Preliminary Hearings. The defenses 1 to 7 in subdivision (b) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision (c) of this rule must be heard and determined before trial on application of any party unless the court orders that the hearing and determination must be deferred until the trial.

  • Like 1
Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.