chuckgst

Being sued by Velocity Investments LLC

Recommended Posts

Ok, so don't be surprised if they respond to your objection saying they want mediation first, which is their right under 44.102. If you claim they agreed, you have to prove that. If this is that important to you, I'd get copies of the court transcript for your hearing where the MTC was granted. 

  • Like 1
Link to comment
Share on other sites

Here is what I have so far. Thoughts and/or comments are always appreciated.

 

DEFENDANTS OPPOSITION TO PLAINTIFF MOTION TO MEDIATE

COMES NOW the Defendant, My Name, pro se, submits this opposition of Plaintiff’s Motion to Mediate.

This opposition is based on the following Memorandum of Points and Authorities, pleadings and papers on file, and any argument that the Court may allow at the time of hearing.

MEMORANDUM OF POINTS AND AUTHORITIES

1)    That on November 7, 2019, Defendant filed a Motion to Compel Binding Private Arbitration based on the terms and conditions of the Loan Agreement attached to Plaintiff’s initial complaint.

2)    That on February 19, 2020, Defendants Motion to Compel Arbitration was heard and granted, without opposition from Plaintiff’s Attorney.

3)    Florida Statute 44.102 Court-ordered mediation section (a) states:

          a)    Must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless:

                1.    The action is a landlord and tenant dispute that does not include a claim for personal injury.

                2.    The action is filed for the purpose of collecting a debt.

                3.    The action is a claim of medical malpractice.

                4.    The action is governed by the Florida Small Claims Rules.

                5.    The court determines that the action is proper for referral to nonbinding arbitration under his chapter.

                6.    The parties have agreed to binding arbitration.

                7.    The parties have agreed to an expedited trial pursuant to s. 45.075.

                8.    The parties have agreed to voluntary trial resolution pursuant to s. 44.104.

 

WHEREFORE, Defendant requests this Honorable Court to rule against the plaintiff’s motion to mediate pursuant to the terms set forth in the original contract, the order granting defendants Motion to Compel Arbitration, and FL Statute 44.102 (2)(a)6.

Link to comment
Share on other sites

1 hour ago, chuckgst said:

I also just received an email from AAA stating they are accepting the case based on a court order compelling arbitration. The plaintiff's initial fees are $3,050. I already paid the $200 initiation fee.

hopefully that big fee for them will be the end of this mess.  fingers crossed for you.

Link to comment
Share on other sites

12 hours ago, Harry Seaward said:

The crux of your motion needs to be the fact that they agreed to binding arbitration, and subsection 6 precludes compulsory mediation when the parties have agreed to binding arbitration. 

I believe I stated that in point 2 of my opposition. Since I really only have 1 shot at the objection, I want to be sure I am objecting properly. 

Link to comment
Share on other sites

2 hours ago, Harry Seaward said:

You should probably make a stronger point of it then, because it didn't come across that their agreement to arbitrate was the entire foundation of your objection. 

Understood. I modified the original paragraph to read like this
 

DEFENDANTS OPPOSITION TO PLAINTIFF MOTION TO MEDIATE

COMES NOW the Defendant, My Name, pro se, submits this opposition of Plaintiff’s Motion to Mediate on the grounds that the court has already held a hearing and granted the Defendant's Motion to Compel Arbitration, the Plaintiff's counsel agreed to arbitration during that hearing,  and a case has already been submitted and accepted by the American Arbitration Association.

 

  • Like 1
Link to comment
Share on other sites

1 hour ago, chuckgst said:

The attorney just called me to to ask if I wanted to settle the account. Not sure what I should have asked for. I just told them that I was not settling at this time.

could contact the attorney and jointly agree to settle with a mutual dismissal with prejudice. 

  • Like 1
Link to comment
Share on other sites

So, the Plaintiff's attorney sent their motion to mediate directly to the judge with a blank order and the judge just signed it today. I just received an email with the signed order.

If I have already filed my Opposition to their motion the day after they filed their motion to mediate, how can the judge sign the order?
There was no hearing scheduled or anything.

 

Link to comment
Share on other sites

18 hours ago, chuckgst said:

So, the Plaintiff's attorney sent their motion to mediate directly to the judge with a blank order and the judge just signed it today. I just received an email with the signed order.

If I have already filed my Opposition to their motion the day after they filed their motion to mediate, how can the judge sign the order?
There was no hearing scheduled or anything.

 

@fisthardcheese

Link to comment
Share on other sites

6 hours ago, fisthardcheese said:

If the judge granted and signed a Motion to Compel Arbitration and STAY the case, then my next move would be a motion for sanctions against the Plaintiff for intentionally violating the order and refusing to abide by the previous order to compel arbitration.

Yep granted MTC with a stay pending outcome is in hand. I had drafted a letter bringing my opposition to their Motion to Mediate but i have not sent it yet. They have until April 3 to pay their portion of the AAA fee. If not received by then, AAA will close the file. Should I wait until then and file a Motion for Sanctions and ask for dismissal for failing to abide by the court order, or should I send something now that states something along the lines of the court erred on approving the motion to mediate as the case is stayed pending arbitration?

Link to comment
Share on other sites

Hold up. There's nothing that says you or they can't seek compulsory mediation while waiting for contractual arbitration to take place. The reason is that compulsory mediation won't result in a dispositive ruling without both parties' consent. Now, if you show up to the meditation, refuse to agree to anything and the judge rules against you,  *then* you have grounds for appeal against the judge's ruling. Until then, it's all just going through the motions. 

Link to comment
Share on other sites

15 hours ago, Harry Seaward said:

Hold up. There's nothing that says you or they can't seek compulsory mediation while waiting for contractual arbitration to take place. The reason is that compulsory mediation won't result in a dispositive ruling without both parties' consent. Now, if you show up to the meditation, refuse to agree to anything and the judge rules against you,  *then* you have grounds for appeal against the judge's ruling. Until then, it's all just going through the motions. 

So you're saying that AFTER the judge orders a stay and compels a party to take a specific action, that this party can continue to motion the court for different actions?  I'm not saying it's not possible, because I've seen crazier rules allowing things in court, but it just seem to go against all of my logic.  Why would the judge allow two different mediation events to take place simultaneously?  This also makes no sense.

Link to comment
Share on other sites

8 hours ago, fisthardcheese said:

So you're saying that AFTER the judge orders a stay and compels a party to take a specific action, that this party can continue to motion the court for different actions?

A "stay" isn't a total moratorium on all motions. Obviously continued litigation on the merits would be out, but a motion to dismiss would have to be entertained if the facts supported it. Same with a motion to compel. Given that court sponsored mediation is a right available to all parties, and does not have a presumption of undue prejudice on any other party, i don't see why a motion for this would have to be denied under the "stay" language of a.r.s. 12-1502. I also don't believe it would be an abuse of discretion had the judge denied the motion for the reasons you gave.  

In any event, the issue at this point is with the court for granting the motion - not with velocity for making the request. 

  • Like 1
Link to comment
Share on other sites

59 minutes ago, chuckgst said:

Quick question while I wait for all of this to play out. AAA said that the plaintiff has until tomorrow to pay their portion of the arbitration fee. If they do not and AAA terminates the case, what happens then?

After you receive notice from AAA stating that the case has been terminated due to the plaintiff’s failure to pay its portion of the arbitration fees, I suppose you could file a motion for sanctions stating that the plaintiff has failed to abide by the court’s order to arbitrate.  

Florida RCP 1.420(b)

(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court

Link to comment
Share on other sites

54 minutes ago, BV80 said:

After you receive notice from AAA stating that the case has been terminated due to the plaintiff’s failure to pay its portion of the arbitration fees, I suppose you could file a motion for sanctions stating that the plaintiff has failed to abide by the court’s order to arbitrate.  

Florida RCP 1.420(b)

(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court

Not yet. I have a letter from AAA dated 3/20 saying that if the plaintiffs portion is not received by tomorrow 4/3/20 then AAA will terminate the case.

Link to comment
Share on other sites

On 4/2/2020 at 11:03 AM, BV80 said:

After you receive notice from AAA stating that the case has been terminated due to the plaintiff’s failure to pay its portion of the arbitration fees, I suppose you could file a motion for sanctions stating that the plaintiff has failed to abide by the court’s order to arbitrate.  

Florida RCP 1.420(b)

(b) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court

Received a letter from AAA today stating they are not going to close the case due to lack of payment from the plaintiff. It also says that they may be barred from any future arbitration for failing to pay their portion of the fees.

Link to comment
Share on other sites

16 minutes ago, Science_guy said:

So if a judge orders private arbitration, but the arbitration organization has barred the business from future arbitration and refuses to hear the case, what happens to a pending lawsuit?

From what I can gather, file a motion for sanctions for failure to follow a court order and ask for a dismissal with prejudice. I think that would be the next step. At least in my case. Not sure how that would apply to anyone else though.

Link to comment
Share on other sites

On 4/15/2020 at 3:10 PM, Science_guy said:

So if a judge orders private arbitration, but the arbitration organization has barred the business from future arbitration and refuses to hear the case, what happens to a pending lawsuit?

Send the Judge's signed granted MTC order to AAA and they will accept the case.  Court order's superseded their refusal

Link to comment
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.