Impress

Midland Funding Lawsuit Texas - Motion for Sanctions?

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Hi all,

So my mom was just hit with a lawsuit by Midland for about $1800 (within SOL).   OC was Comenity Bank/Lane Bryant which has an arb agreement so I will be raising that as a defense.  If someone will be so kind as to make sure I worded this correctly I would appreciate it.  Also, I would like all dealings with the lawyer to go through me.  How do I notify the court or request this from the attorney?  I haven't been able to find anything online but I'm probably wording my search incorrectly.

 

I.  GENERAL DENIAL

Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition.

 

II.  AFFIRMATIVE DEFENSE

Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter.

 

III. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that he (or she) is justly entitled to.

 

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"Also, I would like all dealings with the lawyer to go through me.  How do I notify the court or request this from the attorney?"

Unless you are a lawyer you cannot represent your mother. It is practicing law without a license. You will either need to hire a lawyer or she will have to handle the case herself.

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9 hours ago, Clydesmom said:

Unless you are a lawyer you cannot represent your mother.

He's not asking to represent his mom in court. He wants the lawyer for opposing to deal with him instead of pestering his mom.  The lawyer could refuse, but there's no legal reason the lawyer couldn't agree to this with the mom's approval, although the lawyer may require a power of attorney.

@Impress you will need to file a motion to compel arbitration with your answer. 

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13 hours ago, Harry Seaward said:

He's not asking to represent his mom in court. He wants the lawyer for opposing to deal with him instead of pestering his mom.  The lawyer could refuse, but there's no legal reason the lawyer couldn't agree to this with the mom's approval, although the lawyer may require a power of attorney.

@Impress you will need to file a motion to compel arbitration with your answer. 

 

I have the MTC ready to go.  I had a previous case where I elected arbitration so I just tailored it to fit her case.  I was more concerned about making sure I worded her answer correctly as I failed to do so in my case and don't want to repeat that mistake here.  But thanks for the reminder. 

Question:  @fisthardcheese recommends an affidavit testifying the attached card member agreement is true & correct, but it looks like in Texas we can use an unsworn declaration ( Chapter 132. Sec. 132.001. of the Civil Practice and Remedies Code).  Any opinions on which would be better?

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13 hours ago, Harry Seaward said:

He's not asking to represent his mom in court.

Drawing up her legal documents and filing them for her IS representing her. Whether the courts will pursue it or not is another matter.

13 hours ago, Harry Seaward said:

He wants the lawyer for opposing to deal with him instead of pestering his mom.  The lawyer could refuse, but there's no legal reason the lawyer couldn't agree to this with the mom's approval, although the lawyer may require a power of attorney.

No attorney will communicate only with the child of a defendant absent a power of attorney.  If this were a spouse a signed consent would be enough.  

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17 minutes ago, Clydesmom said:

Whether the courts will pursue it or not is another matter.

They would first have to know that's what's happening. 

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7 minutes ago, Harry Seaward said:

They would first have to know that's what's happening. 

Wouldn't be too difficult.  Mom will have to show up to court and handle the hearing on the MTC.  It isn't difficult for the court to figure it out when Mom gets nervous and blurts out "I have no idea my son/daughter handled all of this for me.  I never spoke to anyone about this."  The court is not going to allow the child to handle the hearings or trial if the motion is denied.

I watched it happen on 2 cases in Texas when I sued a CA and was waiting for my case.  One was a son trying to help Dad and when the Dad pointed at son stating he had handled it for him the Judge stopped them and said unless he is a lawyer he cannot help you.  That is practicing law without a license.  He made the son sit down in the gallery and Dad was left on his own and clueless as he had believed what they were doing is okay. The other was just stupid as they brought a friend with them who had been sued before.

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Ok, so my mom has a hearing on her MTC-Arb and I want to prepare her the best I can.  So no admitting to debt.  And basically she just needs to stick to her guns and remind the court if they are claiming they are owed this debt, then they are bound by the CC agreement which has an arb clause.  We are also going to have the Jams paperwork ready to go in case lawyer claims she is bluffing.  Any other tips you guys can think of?  I've been reading and rereading @fisthardcheese's thread on arb, and printed a copy for her to read, but my mom is nervous and I want to put her ease as much as possible so any additional tips would be helpful.

Also, attorney is Scott & Assoc.  Anyone have dealings with them?

 

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Ok, so my Mom had her court hearing today.  The judge wanted to schedule mediation because it didn't cost anything.  She almost agreed, but looked to me and I shook my head no.  The judge saw and allowed me to come up and speak for her.  Judge was under the assumption we would have to pay a few thousand dollars for a cheap arbitration, I explained that JAMS (which we are electing) limits the amount a consumer pays.  He was surprised.  I also mentioned the contract states they will pay a majority of the fees.  The lawyer made a comment about that's not how it works in commercial arbitration.  I chose not to remind him this is consumer arbitration.  The lawyer then argued that Midland would not consent to JAMS, and the judge assumed I would have to be stuck with AAA.  But I showed the judge the part that lists JAMS as a choice and he interpreted it the same as I did, that I have an option for either AAA or JAMS or a mutually agreed upon third party.   Judge agreed we have the right to arbitrate, and lawyer asked for a stay until claim is filed.  So now off to file for arbitration.

My question is, based on the cost provision below, can/how does she ask that Midland pay her portion of the fee? 

8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and
all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this
Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such
fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.

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I've been wondering something since court yesterday.  The attorney mentioned they would not consent to JAMS, but given Midland's history of stiffing AAA, why would they agree to use AAA and not JAMS?  Any thoughts?  It just struck me as odd.

Also, she hasn't filed yet, but I'm curious, does anyone have a preference to JAMS or AAA, and why? 

 

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JAMS used to be preferred because it was more expensive, but that may have changed. I believe AAA has clearer language saying that you can never be stuck with more than $250 in arbitration cost. Ultimately it doesn't matter since Midland won't arbitrate, period. I'd say JAMS just because that seemed to make the lawyer mad...

 

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7 minutes ago, Impress said:

The attorney mentioned they would not consent to JAMS, but given Midland's history of stiffing AAA, why would they agree to use AAA and not JAMS?  Any thoughts?

Because they are hoping that AAA's rejection of the case combined with their refusal to arbitrate means they can bring it back to court.

9 minutes ago, Impress said:

Also, she hasn't filed yet, but I'm curious, does anyone have a preference to JAMS or AAA, and why?

Choose JAMS so that a AAA rejection of the case doesn't put her at risk to end up back in court.  The goal is not to actually arbitrate this but to make PRA go away.

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On 1/8/2020 at 2:38 PM, Impress said:

does anyone have a preference to JAMS or AAA, and why?

I, personally, would use JAMS every time I have the choice.  JAMS has a much better process and is much more consumer friendly. Not to mention it is more expensive for the other side giving you more leverage to settle quicker.

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Hi all,

I am in need of some assistance.  The time for plaintiff to pay their share of fees has come and gone.  Received notice that the arbitrator has closed case.  So now I believe our next step is to file sanctions and get this dismissed.  The trouble is, I have not been able to find an example of a MTC Sanctions for this type of situation.  Nor can I find relevant case law or statue/rule that I can state in my motion.  Does anyone know if a simple timeline (when they were ordered to compel, etc), and evidence (letters from arbitrator) would be enough?  Plus include a statement saying something like, defendant asks sanctions be imposed for their failure to comply.  Or just simply ask in the prayer that defendant asks for case to be dismissed with prejudice?

Thanks.

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16 minutes ago, Impress said:

Hi all,

I am in need of some assistance.  The time for plaintiff to pay their share of fees has come and gone.  Received notice that the arbitrator has closed case.  So now I believe our next step is to file sanctions and get this dismissed.  The trouble is, I have not been able to find an example of a MTC Sanctions for this type of situation.  Nor can I find relevant case law or statue/rule that I can state in my motion.  Does anyone know if a simple timeline (when they were ordered to compel, etc), and evidence (letters from arbitrator) would be enough?  Plus include a statement saying something like, defendant asks sanctions be imposed for their failure to comply.  Or just simply ask in the prayer that defendant asks for case to be dismissed with prejudice?

Thanks.

I think the proper term is Motion for Sanctions.

Another possibility is a Motion to Dismiss With Prejudice, using their failure to arbitrate as the reason for dismissal.  The idea is that they were ordered to arbitrate, refused to arbitrate, and thus the case should be dismissed.

I can't really help you, because the only time I was in this situation, the judge automatically dismissed the case w/o prejudice on the grounds that the Plaintiff had abandoned the case.  In that situation, I got a Motion to Stay for arbitration (yes, that was in the very early days of arbitration).  The judge ordered that I provide proof of initiation, which I did.  At one point the judge looked over the case, realized she hadn't heard anything from either party for a while, and ordered a dismissal w/o prejudice.  The plaintiff didn't object, and I figured a dismissal w/o prejudice was good enough.  

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On 1/7/2020 at 3:58 PM, Impress said:

The judge saw and allowed me to come up and speak for her.

3 pages of Clydesmom's incorrect gibberish just quashed in one sentence from the Judge.  😂

2 hours ago, Impress said:

Hi all,

I am in need of some assistance.  The time for plaintiff to pay their share of fees has come and gone.  Received notice that the arbitrator has closed case.  So now I believe our next step is to file sanctions and get this dismissed.  The trouble is, I have not been able to find an example of a MTC Sanctions for this type of situation.  Nor can I find relevant case law or statue/rule that I can state in my motion.  Does anyone know if a simple timeline (when they were ordered to compel, etc), and evidence (letters from arbitrator) would be enough?  Plus include a statement saying something like, defendant asks sanctions be imposed for their failure to comply.  Or just simply ask in the prayer that defendant asks for case to be dismissed with prejudice?

Thanks.

Check your court's rules for "failure to follow court's order" or something similar.  There isn't really going to be case law on this because it's mostly a court rules issue and not something that is litigated.  I would just make a simple motion that details the history up to this point, about your MTC being granted, the filing of JAMS, all of the JAMS notices to pay and their failure to follow the JAMS rules and orders, then I would state that the Plaintiff is in violation of the court's order to arbitrate this case and is intentionally causing delay and further expense.  I would ask BOTH that the Plaintiff be sanctioned and that the case be dismissed with prejudice.

I would send a copy of my motion to the attorney by email and I would state that I intend to file the attached motion, but that as a courtesy, I will hold off filing and give their client 7 days to accept my offer of mutual dismissal with prejudice of all claims and cases between the parties. This usually gets things sorted because it will save the attorney the embarrassment of having to answer to the judge for their ignoring the MTC order and defending a sanction motion.

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