Racinghart03

DV Sent back by Collections Attorney for Cavalry Portfolio..What Next?

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11 hours ago, debtzapper said:

@debtzapperThank you! 

 

2 minutes ago, fisthardcheese said:
 

The case law you are looking for is the burden or requirements of Summary Judgement.  There should be plenty of cases where the judge stated that summary judgement is denied due to a genuine dispute still in question.

@fisthardcheese I was on a time crunch. I needed to get this in before the weekend. I did not want to miss the window. I only had 10 days. :( I did have the arb case law that I had in the my MTC included. I was a little dizzy from reading and as foolish as it sounds, I was so nervous about putting case law that supported summary judgment in by accident. Some of the case law I found were about reversals and such.  My eyes were literally falling out of my head from all the reading and the watching videos on top of going to work every day. I was shot. 

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1 minute ago, Racinghart03 said:
 
 

@debtzapperThank you! 

 

@fisthardcheese I was on a time crunch. I needed to get this in before the weekend. I did not want to miss the window. I only had 10 days. :( I did have the arb case law that I had in the my MTC included. I was a little dizzy from reading and as foolish as it sounds, I was so nervous about putting case law that supported summary judgment in by accident. Some of the case law I found were about reversals and such.  My eyes were literally falling out of my head from all the reading and the watching videos on top of going to work every day. I was shot. 

That's alright.  I would still try to find some in case there is a hearing and you can cite it at that time if needed.  The Judge knows what the laws are for summary judgement anyway, it's just more of a formality.  If he finds that your argument regarding the MTC is proper, he will use the established law to rule against summary judgement.

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5 minutes ago, fisthardcheese said:

That's alright.  I would still try to find some in case there is a hearing and you can cite it at that time if needed.  The Judge knows what the laws are for summary judgement anyway, it's just more of a formality.  If he finds that your argument regarding the MTC is proper, he will use the established law to rule against summary judgement.

@fisthardcheese Fingers crossed!! I still have nightmares of laying down case law and then realizing it is in SUPPORT of summary judgement. I found plenty of examples where there were genuine disputes and summary judgement was denied after an APPEAL lol. Which means it was granted first... Not what I am trying to go through. 

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@Racinghart03 This NJ lawyer gives a good overview of a MSJ:

https://www.nugentlaw.net/blog/2014/07/the-motion-for-summary-judgment-in-new-jersey.html

 

New Jersey Court Rule 4:46-2 also governs what is submitted in support of the Motion for Summary Judgment, any opposition to the motion, and also sets forth standard for evaluating the motion. In support of the motion the moving party must submit a motion served with briefs, a statement of material facts and with or without supporting affidavits. There are also must be citations contained in the statement of material facts to the portion of the motion record establishing the fact or demonstrating that it is uncontroverted. See Rule 4:46-2(a). The non-moving party filing opposition to the Summary Judgment Motion must file a responding statement either admitting or disputing each of the facts in the movant's statement. An opposing party may also include in the responding statement additional facts that the party contends are material and as to which there exists a genuine issue. Each such fact shall be stated in separately numbered paragraphs together with citations to the motion record. See Rule 4:46-2(b). The standard applied in evaluating Summary Judgment motions is set forth under 4:46-2(c), which states the following:

"The judgment or order shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. An issue of fact is genuine only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom, favoring the non-moving party, would require submission of the issue to the trier of fact . . ."

Brill v. Guardian Insurance Company of America, 142 N.J. 520 (1995) is a New Jersey case often cited when describing the law regarding Summary Judgment standard in New Jersey State Court. In Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995) the New Jersey Supreme Court specifically stated that:

"Under this new standard, a determination whether there exists a 'genuine issue' of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party." Brill, 142 N.J. at 540.

Accordingly, it is important to note that the non-moving party will be given all inferences by the court and has the evidence viewed in the light most favorable to them.

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@BrotherskeeperThank you for that! I will keep that handy.  @fisthardcheese Helped me finalize a pretty solid brief with arguments to the three points the JDB made in their motion. With my pending MTC, and a motion that was filed by the JDB that from what I gather was just improper and potentially a FDCPA violation in and of itself, hopefully this thing gets bounced into ARB. 

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@Racinghart03 You may find this amicus brief contains some useful arguments, if needed. It is Texas, not NJ. So far in your case plaintiff has not filed a response in opposition to your motion to compel, correct? They may file a reply to your response to their MSJ. Do your rules allow for you to file another response to their reply? 

"When the Consumer Would Rather Not Litigate: Arbitration Agreement as a Defense Against a Motion for Summary Judgment in a Contractor-vs-Homeowner Case" 

REPLY BRIEF BY AMICUS CURIAE 

https://poseidon01.ssrn.com/delivery.php?ID=414065068026025127026078065116085002017016005008033085110094117005098066122064082004003032103103116031046074068117013021126099055010000046009116001093086094114069073009009083085002008009093024107001094114092117090120082106086084007080010112013105029103&EXT=pdf

 

     "The procedural relief Currid elected to pursue by invoking the forum selection clause was to stop a summary adjudication on the merits in the wrong forum, and to ask for a dismissal without prejudice to refiling in the proper forum. "A motion to dismiss is the proper procedural mechanism for enforcing a forum selection clause that a party to the agreement has violated in filing suit." Phoenix Network Techs. v. Neon Sys., 177 S.W.3d 605, 610 (Tex. App.-Houston [1st Dist.] 2005, no pet.); see also In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004) (orig. proceeding).14
     Coit’s alleged failure to counter Coit’s motion for traditional summary judgment in its favor with any evidence of her own (for which Coit faults her) was entirely consonant with her position that the merits should not be adjudicated in the forum chosen by Coit in contravention of the forum selection clause."

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13 minutes ago, Brotherskeeper said:

@Racinghart03 You may find this amicus brief contains some useful arguments, if needed. It is Texas, not NJ. So far in your case plaintiff has not filed a response in opposition to your motion to compel, correct? They may file a reply to your response to their MSJ. Do your rules allow for you to file another response to their reply? 

"When the Consumer Would Rather Not Litigate: Arbitration Agreement as a Defense Against a Motion for Summary Judgment in a Contractor-vs-Homeowner Case" 

REPLY BRIEF BY AMICUS CURIAE 

https://poseidon01.ssrn.com/delivery.php?ID=414065068026025127026078065116085002017016005008033085110094117005098066122064082004003032103103116031046074068117013021126099055010000046009116001093086094114069073009009083085002008009093024107001094114092117090120082106086084007080010112013105029103&EXT=pdf

 

     "The procedural relief Currid elected to pursue by invoking the forum selection clause was to stop a summary adjudication on the merits in the wrong forum, and to ask for a dismissal without prejudice to refiling in the proper forum. "A motion to dismiss is the proper procedural mechanism for enforcing a forum selection clause that a party to the agreement has violated in filing suit." Phoenix Network Techs. v. Neon Sys., 177 S.W.3d 605, 610 (Tex. App.-Houston [1st Dist.] 2005, no pet.); see also In re AIU Ins. Co., 148 S.W.3d 109, 112 (Tex. 2004) (orig. proceeding).14
     Coit’s alleged failure to counter Coit’s motion for traditional summary judgment in its favor with any evidence of her own (for which Coit faults her) was entirely consonant with her position that the merits should not be adjudicated in the forum chosen by Coit in contravention of the forum selection clause."

@Brotherskeeper. Correct. The plaintiff just filed for their MSJ and never responded to my MTC which was filed a while back. I have been very cautious and clear about my intent NOT to litigate and behave in a manner consistent with reliance on a valid arbitration agreement. I don't want to waive my right. I have to look into if I can respond to a response. Thanks for the additional info!!!

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On 9/11/2020 at 11:45 AM, Racinghart03 said:

and potentially a FDCPA violation in and of itself

Not filing a motion, but sending a letter that acknowledges you filed an MTC but they intend to circumvent that is a POTENTIAL violation.  Nothing solid, but good enough that I would use it when I filed my JAMS case and let them spend all the money to counter argue that it isn't a violation.

 

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12 hours ago, fisthardcheese said:

Not filing a motion, but sending a letter that acknowledges you filed an MTC but they intend to circumvent that is a POTENTIAL violation.  Nothing solid, but good enough that I would use it when I filed my JAMS case and let them spend all the money to counter argue that it isn't a violation.

 

@fisthardcheeseRight now my plan is contingent on my MTC being granted. I am going to make them a settlement offer of 15% of their claimed debt before I send it to arb. Any thoughts? I am willing to go to 20% based on the age and circumstance of the debt they claim. Ex wife, divorce, blah blah blah. 

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23 hours ago, Racinghart03 said:

@fisthardcheeseRight now my plan is contingent on my MTC being granted. I am going to make them a settlement offer of 15% of their claimed debt before I send it to arb. Any thoughts? I am willing to go to 20% based on the age and circumstance of the debt they claim. Ex wife, divorce, blah blah blah. 

You do what you feel is right for you.  If it is me, and I get a granted MTC from court, I would never offer a dollar to settle. The MTC flips the leverage all in your favor.  But again, that's me and you should do what you feel is best for you.

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37 minutes ago, fisthardcheese said:

You do what you feel is right for you.  If it is me, and I get a granted MTC from court, I would never offer a dollar to settle. The MTC flips the leverage all in your favor.  But again, that's me and you should do what you feel is best for you.

@fisthardcheese I understand. Lets get the MTC settled first. I can cross the next bridge after that!! 

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@BV80 So I got two electronic communications from the court. One stating the Plaintiffs MSJ was DENIED. Another stating my MTC was GRANTED. Yesterday I received a copy of an order from the JDBs office. It was actually their proposed order where the judge literally scribbled out their proposal, and wrote "DENIED. COMPLAINT DISMISSED WITHOUT PREJUDICE. SEE ATTACHED STATEMENT OF REASON." It was also signed by the Judge with OPPOSED checked off. Included was a statement of reason which basically said since I was able to show there was an actual dispute in my brief, the MSJ was denied. It is worth mentioning that in the closing statements, the fact I sent an arb letter of demand, provided a valid arb agreement, submitted a MTC prior to the MSJ and the complaint being filed, the fact that the plaintiff basically ignored all that, never opposed my motion but instead followed up with their MSJ were all the reasons the MSJ was denied. I attribute all of the actions I took based on the guidance I found here. So again....Cannot thank you all enough. Verbatim from the conclusion in the statement or reason..."In light of the foregoing reasons, Plaintiffs motion for summary judgment should be DENIED and DISMISSED WITHOUT PREJUDICE, and the Defendants Motion to Compel Arbitration should be GRANTED." So what now? Will I get an order for arb? Or is this it?  And either way,  Do I file for arb, or do they? And @fisthardcheese, If I initiate, it is for FDCPA violations yes? I am assuming they will counter with the debt claim but I understand that the purpose is to just get them tangled up in the arb process. 

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This situation is a little different, since the case has also been dismissed without prejudice.  

There is a temptation to just ignore everything, and not file in arbitration.  That is very dangerous.  They CAN re-file the case, and if you haven't filed in arbitration, they may well be able to convince a judge you have waived your rights to arbitration.

What you really want is to get them to agree to a dismissal WITH prejudice in return for you agreeing not to arbitrate.  In general, it is better to file in arbitration first, to show them you aren't joking.  Since your case was already dismissed w/o prejudice, perhaps you could email them an offer today for a mutual walkaway in return for a dismissal with prejudice.  If you don't hear back from them within a week, file in arbitration, and send them a copy of the filing.  That forces their hand.  

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13 minutes ago, BackFromTheDebt said:

This situation is a little different, since the case has also been dismissed without prejudice.  

There is a temptation to just ignore everything, and not file in arbitration.  That is very dangerous.  They CAN re-file the case, and if you haven't filed in arbitration, they may well be able to convince a judge you have waived your rights to arbitration.

What you really want is to get them to agree to a dismissal WITH prejudice in return for you agreeing not to arbitrate.  In general, it is better to file in arbitration first, to show them you aren't joking.  Since your case was already dismissed w/o prejudice, perhaps you could email them an offer today for a mutual walkaway in return for a dismissal with prejudice.  If you don't hear back from them within a week, file in arbitration, and send them a copy of the filing.  That forces their hand.  

@BackFromTheDebt Yes that makes sense. I would not want to drop the ball now after all my effort. In my offer for a mutual walkaway with prejudice, am I telling them I will be filing for arb in the event they do not offer me the walkaway? Do I tell them on what grounds? Or just make them an offer for the walkaway in leu of my pursuing arbitration and see what happens. JAMS still the best way to go? I have heard AAA will not deal with Cavalry as they owe them tons of money (SHOCKER). I understand that there is a court order so they have to. Just curious if that plays to my advantage at all? Or should I stick with what @fisthardcheese suggests and stick with JAMS? And the JDB attorney would be the one granting a mutual walkaway with prejudice? Not the court?

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The general rule of thumb is to always file in JAMS if you have the chance.  Include the court order with your filing.  

I would make the offer now, and not make filing a part of the offer.  

Here is the timeline:

1.  You make the offer right away for a mutual walkaway of all court and arbitration cases, and don't mention filing.  If they accept within the next week, you win.

2. If they don't accept within the next week, file in JAMS.  Send a copy to their attorney.  When you are sure they have the copy, repeat the offer, except this time emphasize that you have already filed in JAMS.  If they accept the offer, you win.

3. If you never hear from them, the case will eventually be dropped in JAMS.  Petition the court to change the dismissal to WITH prejudice.  If you get the dismissal, you win.

4. If you don't get a dismissal with prejudice, and they have walked away from JAMS, you win anyway, since they almost certainly won't file again.  

5. If they try to file again, file an MTD saying the previous judge ordered arbitration and they defaulted on arbitration.  This is an extremely unlikely scenario, but you win again if you get the MTD.  If the MTD is rejected, file an MTC, and continue the game of whack-a-mole until they give up and you win.

6. There is also the unlikely scenario that they pay the JAMS fees and reject or ignore your offer.  In that case, continue with arbitration.  When it gets close to hearing time, they will almost certainly balk at the bill, and will probably accept your offer.  You win.

7. There is a scenario in which they fight to the bitter end in JAMS.  I haven't heard of Calvary ever doing this, but it is remotely possible.  If that happens, you lose.  That is a remote possibility, but be aware if COULD happen if they decide to teach you a lesson. 

 

I have only been in JAMS with OCs, which are usually tougher.  I won two accounts with #2, one with #4 and two with #6.  I never lost.  

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Send an offer to their attorney any way you think will get there.  If you have an email address, send it email.  You could mail it.  Include contact info, such as your email address.  In general, I found these negotiations are much easier with email.  

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5 minutes ago, BackFromTheDebt said:

Send an offer to their attorney any way you think will get there.  If you have an email address, send it email.  You could mail it.  Include contact info, such as your email address.  In general, I found these negotiations are much easier with email.  

@BackFromTheDebt So simply put, "This is a letter of offer in reference to your account #XXXXX/AMOUNT XXXXX. I am hereby offering a mutual walkway with Prejudice from any disputes arising from the aforementioned account initiated by any involved parties and or their representatives/counsel. This offer of agreement shall include any pending or future lawsuits and or any current or future arbitration proceedings. This agreement also fully releases MY NAME from any claims of the debt claimed by Cavalry Portfolio in reference to the account/amount listed above." Trying to cover all the bases. 

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1 hour ago, Racinghart03 said:

@BackFromTheDebt So simply put, "This is a letter of offer in reference to your account #XXXXX/AMOUNT XXXXX. I am hereby offering a mutual walkway with Prejudice from any disputes arising from the aforementioned account initiated by any involved parties and or their representatives/counsel. This offer of agreement shall include any pending or future lawsuits and or any current or future arbitration proceedings. This agreement also fully releases MY NAME from any claims of the debt claimed by Cavalry Portfolio in reference to the account/amount listed above." Trying to cover all the bases. 

Looks good.  Their attorney can draw up a nicely legal agreement.

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If the judge did indeed dismiss your entire case already, then asking for a dismissal with prejudice isn't quite accurate.  What I would do is file JAMS immediately.  It cost nothing but a few prints and a couple CMRRR packets mailed off.  Once JAMS confirms the case, and the attorney has received my filing showing I am claiming their violations (whatever claims you may have against them), then I would email the attorney for a mutual release of all claims.

If, in fact, the court shows this case closed and dismissed, then the proper settlement is just between the parties and not through the court anymore.  This means, all you need is a settlement agreement signed by both parties that says you each agree to a release of ALL claims against the other.  That is a contractual equal to a dismissal with prejudice.  If they tried to sue after that, you bring the contract to court, show that they agreed in writing that there is NO claim they can bring against you and then you get to sue them back for breach of contract and the FDCPA violation.

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