arbitration or chapter 7

Sued in Michigan (Cavalry, Portfolio and Midland)

Recommended Posts

7 hours ago, arbitration or chapter 7 said:

(Pl.'s Ex., pp 10-11), in your opinion is the abbreviation   of Plaintiff used correctly there?

Yes. Plaintiff is Pl. Plaintiff's (possessive) is Pl.'s. Defendant is Def. Defendant's is Def.'s.

Share this post


Link to post
Share on other sites

@BrotherskeeperI have not received any correspondence from the  attorney and the 7 day clock has expired since they signed for the Notice of Arbitration I sent them,  so I am going to file the MTCA, Affidavit and Notice of Hearing today.  I just checked the court case online and noticed there is a pre-trial hearing set for October 10th.  My question is how does this effect my MTCA?  I assume I should still file the Motion?

Share this post


Link to post
Share on other sites
1 hour ago, arbitration or chapter 7 said:

I just checked the court case online and noticed there is a pre-trial hearing set for October 10th.  My question is how does this effect my MTCA?  I assume I should still file the Motion?

This is the rule for Pre-trial proceduress. (IANAL) If the rules allow you to file a motion and schedule a hearing time before you have your first pretrial conference, as the MCR 2.116 rules appear to allow, then you can go ahead and file. Your MTCA will be discussed at the 10/10 conference--unless the judge wishes to hear it on the 10th. 

Rule 2.116 Summary Disposition

(A) Judgment on Stipulated Facts.

(1) The parties to a civil action may submit an agreed-upon stipulation of facts to the court.

(2) If the parties have stipulated to facts sufficient to enable the court to render judgment in the action, the court shall do so.

(B) Motion.

(1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.

(2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the same claim.

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(1) The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

(2) The grounds listed in subrule (C)... (7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

(G) Affidavits; Hearing.

(1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule.

(a) Unless a different period is set by the court,

(i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and

(ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing.

(iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties’ response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing.

(iv) no additional or supplemental briefs may be filed without leave of the court.

(b) If the court sets a different time for filing and serving a motion, or a reply brief, its authorization must be endorsed in writing on the face of the notice of hearing or made by separate order.

(c) A copy of a motion, response (including brief and any affidavits), or reply brief filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE'S COPY on the cover sheet; that notation may be handwritten.

 

Rule 2.401 Pretrial Procedures; Conferences; Scheduling Orders
(A) Time; Discretion of Court. At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties, alone or with the parties, appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action.

(B) Early Scheduling Conference and Order.

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. In addition to those considerations enumerated in subrule (C)(1), during this conference the court should consider:

(a) whether jurisdiction and venue are proper or whether the case is frivolous,

(b) whether to refer the case to an alternative dispute resolution procedure under MCR 2.410,

(c) the complexity of a particular case and enter a scheduling order setting time limitations for the processing of the case and establishing dates when future actions should begin or be completed in the case, and

(d) discovery, preservation, and claims of privilege of electronically stored information.

# # #

(C) Pretrial Conference; Scope.

(1) At a conference under this subrule, in addition to the matters listed in subrule (B)(1), the court and the attorneys for the parties may consider any matters that will facilitate the fair and expeditious disposition of the action, including:

(a) the simplification of the issues;

(b) the amount of time necessary for discovery;

(c) the necessity or desirability of amendments to the pleadings;

(d) the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;

(e) the limitation of the number of expert witnesses;

(f) the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;

(g) the possibility of settlement;

(h) whether mediation, case evaluation, or some other form of alternative dispute resolution would be appropriate for the case, and what mechanisms are available to provide such services;

(i) the identity of the witnesses to testify at trial;

(j) the estimated length of trial;

(k) whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by MCR 2.203(A);

(l) other matters that may aid in the disposition of the action.

(2) Conference Order. If appropriate, the court shall enter an order incorporating agreements reached and decisions made at the conference.

Share this post


Link to post
Share on other sites

Thank you @BrotherskeeperI thought the same after researching the  procedures...I will file the MTCA and Affidavit (with signed Certified Mail Receipt, Notice  of Arbitration Election/Proposed Election as Exhibit A) but assume I may not be given a court date since the pre trial date is already set so in that case I would not fill out the Notice of Hearing (if a court date is not assigned when I file the MTCA).  I will only file the Notice of Hearing if a new court date is assigned to the filing of the MTCA otherwise I will expect the MTCA to be discussed at the pre trial date of October 10.

Share this post


Link to post
Share on other sites
56 minutes ago, arbitration or chapter 7 said:

but assume I may not be given a court date since the pre trial date is already set so in that case I would not fill out the Notice of Hearing (if a court date is not assigned when I file the MTCA).  I will only file the Notice of Hearing if a new court date is assigned to the filing of the MTCA otherwise I will expect the MTCA to be discussed at the pre trial date of October 10.

I think you have to request a hearing date (aka Notice) and pay the motion fee. Did you ask the court clerk if your judge requires a "judge's copy" of your motion papers? The plaintiff has to have time to file a response to your to MTCA 7 days before the motion hearing date. 

Share this post


Link to post
Share on other sites
8 minutes ago, arbitration or chapter 7 said:

@Brotherskeeper I was able to file the motion and chose a hearing date of 10/8/19.  I did not have to provide a "judges copy" which I think was the case with BitsyMI and Want2beclear as well.

Good. I think the courts are trying to cut down on all of the paper, but some judges still like their own hard copies. Let's see if the plaintiff files a response to your motion. 

Share this post


Link to post
Share on other sites

Yesterday I had my MTC hearing and wanted to report back the results to share the result and close out this thread.

I arrived at the courthouse 30 minutes prior to the hearing to go over all my notes and mentally prepare, was admittedly nervous but this is what I signed up for so was ready to walk out of there with my arbitration order.  The courtroom was locked so plaintiffs and defendants began filling the hallway while waiting to enter the courtroom, the bailiff came out and started checking people in by asking their name and if they had talked to the other party yet.  It seems the process is have the two parties talk in the hallway prior to entering the courtroom to see if you can come to some kind of agreement before your time in front of the judge.  Cavalry did not show up early so I entered the courtroom thinking what if they don’t show and what to do next.  About 15 minutes into listening to other motions being heard and defended, the Cavalry attorney walked in.  The bailiff went over to her and then pointed in my direction so we went to the hallway to talk. 

The Cavalry attorney was very professional and cordial.  She pulled out my file from several files in her folder and the first comment was why arbitration and proceeded to say she has never heard of the consumer asking for arbitration as it is expensive and once judgement is ordered you only have 21 days to pay the full amount, I corrected her and told her I believe it is 28 days from judgement.  I will say I have been a headhunter for 20 years and after interviewing thousands of people through those years I can figure out when someone is genuine or not and this cavalry attorney genuinely believed a consumer asking for arbitration was crazy, obviously they are programmed to have that belief. She said she had a settlement offer  of 85% of the balance due which would avoid any more court time or arbitration. I told her that I was very familiar with the process from my research (I so wanted to brag about this site with incredibly helpful/posters but held back, lol)  and was comfortable following through to arbitration and told her we should probably get back in to the courtroom before the judge calls our case.  She said ok and that she was going to call her client and let them know that I wanted to continue with arbitration.  I went back into the court a bit bummed that she didn’t offer a dismissal with prejudice offer like in BitsyMI or Want2beclears case but I knew my dollar amount (over $9000) was 4 times their amounts so they would not fold easily. About 5 minutes later she came back into the courtoom and asked me to come back to the hallway.  She told me she talked to her client and had a final settlement offer of 50% of balance due and that can be paid in a monthly payment plan with whatever amount I feel I can handle, she threw $25/month out there.  No judgement, case dismissed without prejudice at a settlement offer of 50% balance due to be paid monthly and no interest accruing on the balance…obviously they can reopen the case down the road as it was without prejudice.

Going into this I had a dollar amount that I felt if they offered I may take and that number was $4200.  I got this number from figuring arbitration costs would run them around 5K so they could still walk away with 4200 after the arb costs if it went all the way through.  The other concern I had going into this was 2 or 3 weeks back there was a post from someone that filed arb vs Cavalry and was denied because AAA said they would not work with Cavalry anymore.  So my concern was if the judge does not order arbitration and AAA won’t accept my case (JAMS was not listed as an option in my agreement) then I would have no leverage and could be on the hook for close to the full amount.  I also have a case with Portfolio going on right now (will post an update on that thread) so the thought of having multiple cases going at the same time while trying to make a living was a bit overwhelming.  So I ended up taking the deal.  We went back to the court room and waited for the judge to call us up, she asked if we were able to come to an agreement and we both said yes told her what is was and she directed the Cavalry attorney to write up the Order and she would sign it, she did and we went our separate ways.

Looking back a couple things I would have done different.  First I should have attended a motion hearing as an observer just to see how it works and what happens and to get comfortable in that surrounding.  I think that would have calmed my nerves a bit. There were at least 8 cases being heard at the same time as mine so being a new situation I have never been in, representing myself in front of a judge and at the same time trying to negotiate a deal the nerves did play a part in my accepting a settlement instead of getting the ultimate victory of a dismissal with prejudice.  Anyone that is entering into this process should look up the daily docket at their court and look for Motion cases involving Cavalry, Portfolio or Midland and then go observe those hearings as it will give you a better feel and understanding for what to expect at your hearing thus giving you more confidence.  Second, I would not have a walk away number in my head  as that fallback option opens the door mentally to giving up on the ultimate outcome which in these cases is the dismissal with prejudice, 0 dollars paid.

Overall I am comfortable with the outcome, it is a better situation than it was going into this.   I am incredibly thankful for this site and especially @Brotherskeeper for all his time.  As I said I do have the Portfolio case going on right now as well and will continue to update that thread with updates.

  • Like 2

Share this post


Link to post
Share on other sites
1 hour ago, arbitration or chapter 7 said:

Overall I am comfortable with the outcome, it is a better situation than it was going into this.

Congrats! As we always say on this forum, if you're pleased with the outcome you've negotiated, it's a win. Now you can put this one behind you and move on to the next challenge. Thank you for the richly detailed post of your experience in court and with the opposing attorney. It will help the next pro se to be better prepared. 

  • Like 1

Share this post


Link to post
Share on other sites

Thank you for reporting back and congratulations on an outcome that works for you. I understand that with such a high debt, and that AAA letter, that you didn't want to risk the judge messing up and having to go to appeal.

EDIT: So you sure there was no Consent Judgement? I can't figure what Cavalry gets out of this, except resetting SOL. Is there any verbiage? Seems like if you didn't pay on this agreement, and they sued, it would have to be for the 4200.

 

 

  • Like 2

Share this post


Link to post
Share on other sites
On 10/9/2019 at 3:02 PM, arbitration or chapter 7 said:

Going into this I had a dollar amount that I felt if they offered I may take and that number was $4200.  I got this number from figuring arbitration costs would run them around 5K so they could still walk away with 4200 after the arb costs if it went all the way through.  The other concern I had going into this was 2 or 3 weeks back there was a post from someone that filed arb vs Cavalry and was denied because AAA said they would not work with Cavalry anymore.  So my concern was if the judge does not order arbitration and AAA won’t accept my case (JAMS was not listed as an option in my agreement) then I would have no leverage and could be on the hook for close to the full amount.  I also have a case with Portfolio going on right now (will post an update on that thread) so the thought of having multiple cases going at the same time while trying to make a living was a bit overwhelming.  So I ended up taking the deal.  We went back to the court room and waited for the judge to call us up, she asked if we were able to come to an agreement and we both said yes told her what is was and she directed the Cavalry attorney to write up the Order and she would sign it, she did and we went our separate ways.

Just for the sake of others coming here looking for answers, None of the concerns above have yet proven to hold true.  If you can't afford a settlement like OP did here, do not let this defeat you.  Calvary would have almost assuredly folded once arbitration was started, and there is overwhelming case law in favor of arbitration so any good judge would have to grant an MTC.

Share this post


Link to post
Share on other sites

@fisthardcheese   I would also add that at no time did the Calvary attorney hint or mention that arbitrators deny their cases...the decision to settle was in part to my self doubt being in a new situation and not confident in my ability to argue the case effectively if it came to that.  Now that I have been through it I have more confidence going into  the other case I have going on and plan to win my MTCA

Share this post


Link to post
Share on other sites
14 minutes ago, arbitration or chapter 7 said:

@fisthardcheese   I would also add that at no time did the Calvary attorney hint or mention that arbitrators deny their cases...the decision to settle was in part to my self doubt being in a new situation and not confident in my ability to argue the case effectively if it came to that.  Now that I have been through it I have more confidence going into  the other case I have going on and plan to win my MTCA

AAA isn't going to refuse to take a case with a court order.

Share this post


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.