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Motion to Compel Hearing Plaintiff no show.


dontwearmasks
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Motion to Compel Arbitration Hearing Plaintiff no show.

Plaintiff: PRA

Debt: 7k

Santa Clara County, CA. 

I was served in October and I filed MTC that same month using the template here. I sent certified mail of the endorsed copy to the plaintiff in early November. Checking progress online, a court date was set for December.

I go to the hearing and plaintiff was a no show. Judge requested to provide a copy of the certified mail receipt that I mailed to the Plaintiff. Supposedly, I am suppose to file that I had sent it. I will send that receipt by end of day.

What happens next? Does this work to my benefit?

EDIT: Wanted to add, the OC is Comenity Bank.

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7 hours ago, WhoCares1000 said:

If you prove you served the plaintiff properly, your MTC will more than likely be granted and you can move on from there.

Hopefully its granted. I was hoping you would say, I can file MTD. I guess I am dreaming.

 

On the bright side, it extends the process longer which gives me more time to save for the lump sum offer.

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  • 2 weeks later...
On 12/21/2020 at 2:52 PM, dontwearmasks said:

Received a letter from the court. Arb GRANTED! 

Congrats on getting your MTC Arbitration granted, @dontwearmasks! I'm about to start my Cali arbitration case. My very first one (I've only done the court route before).

Out of curiosity, which MTC templates did you use? @NetworkEngineer's

Thanks!

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On 12/28/2020 at 6:12 PM, LoveIsPower said:

Congrats on getting your MTC Arbitration granted, @dontwearmasks! I'm about to start my Cali arbitration case. My very first one (I've only done the court route before).

Out of curiosity, which MTC templates did you use? @NetworkEngineer's

Thanks!

 

i used the sample MTC in the sticky thread. I filed MTC in place of an answer. Included CC agreement as Exhibit with affidavit. 

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  • 2 weeks later...

I was preparing to file my AAA/JAMs case today and started reading the document from the court. I thought it was granted but at the end it seems its not and there is a new arb hearing date.

In the final paragraph:

"Good cause appearing, any order made today is vacated. The matter will be continued  (date) in this department. Defended is to re-serve is moving papers in accordance with the foregoing."

I believe the issue is that I didn't serve the Plaintiff properly. I sent the documents via certified mail but did not file it with the court at the time. Does that mean I am to re-send the docs to plaintiff and file it with proof of service?

 

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Reserve the papers according to what was said in the decision and file the papers with proof of service with the court. You are restarting the motion process again (in other words, the court is giving you a 2nd chance). I would review what you have to do to properly serve a motion and what you need to file with the court to prove you did it.

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  • 4 weeks later...
1 hour ago, dontwearmasks said:

my efile of proof of service mail was rejected for reason: caption page required.

Is the caption page just the general pleading paper as the first page, than pos form?

To add to this. What I did specifically is fill out form 'POS-030 PROOF OF SERVICE BY FIRST-CLASS MAIL'.

I e-filed that form and that USPS receipt as separate documents. 


Should I combine the documents: POS30, Exhibit slip sheet, USPS receipt? Does that cover the caption required?

Or is it: PG1: General Pleading Paper., PG2 POS30, PG3 Exhibit slip sheet, PG4 USPS receipt?

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  • 2 weeks later...
On 2/6/2021 at 1:38 PM, dontwearmasks said:

To add to this. What I did specifically is fill out form 'POS-030 PROOF OF SERVICE BY FIRST-CLASS MAIL'.

I e-filed that form and that USPS receipt as separate documents. 


Should I combine the documents: POS30, Exhibit slip sheet, USPS receipt? Does that cover the caption required?

Or is it: PG1: General Pleading Paper., PG2 POS30, PG3 Exhibit slip sheet, PG4 USPS receipt?

Hi @dontwearmasks — were you able to file your proof of service successfully?

I'm about to serve them (my MTC is scheduled for May 20 — plenty of time), but now I'm wondering what I need to file with the court, as far as POS requirements.

I'm re-reading  CCP 1290.4  and ... are we supposed to wait to file with the court until AFTER we've received our "green card" with the SIGNATURE of the person who received it??  Here it is:

(b) (2) Service outside this State shall be made by mailing the copy of the petition and notice and other papers by registered or certified mail. Personal service is the equivalent of such service by mail. Proof of service by mail shall be made by affidavit showing such mailing together with the return receipt of the United States Post Office bearing the signature of the person on whom service was made. Notwithstanding any other provision of this title, if service is made in the manner provided in this paragraph, the petition may not be heard until at least 30 days after the date of such service.

Did you wait to get the card with the signature?

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  • 4 weeks later...

My MTC was granted. Not going to include the issues i encountered but here are the steps.

1. Filed MTC with court

2. MTC Arbitration hearing was scheduled

3. Send via Certified mail of endorsed copies of MTC filing to plaintiffs attorney. Opted out of sig required.

4. File POS30, attach the certified mail receipt.

5. Go to MTC hearing.

6. Granted.

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7 hours ago, dontwearmasks said:

My MTC was granted. Not going to include the issues i encountered but here are the steps.

1. Filed MTC with court

2. MTC Arbitration hearing was scheduled

3. Send via Certified mail of endorsed copies of MTC filing to plaintiffs attorney. Opted out of sig required.

4. File POS30, attach the certified mail receipt.

5. Go to MTC hearing.

6. Granted.

Thanks, @dontwearmasks! This is exactly what I did. I filed the POS with the receipt of mailing. The clerk never batted an eye. I already got the RR "green card" back, in case it comes up.

Congrats on your MTC being granted!  How was the MTC hearing?

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It was quick. When my case got called, I was out of there in the next minute. Probably it was easy decision for the Judge because Plaintiff no show again. I hope the Plaintiff ignore the AAA/JAMS case as well so I can go back to court and ask for a dismissal for not arbitrating.

The case got stayed for 6 months outs. How long was yours stayed?

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2 hours ago, dontwearmasks said:

It was quick. When my case got called, I was out of there in the next minute. Probably it was easy decision for the Judge because Plaintiff no show again. I hope the Plaintiff ignore the AAA/JAMS case as well so I can go back to court and ask for a dismissal for not arbitrating.

The case got stayed for 6 months outs. How long was yours stayed?

Actually, just before you file, you should call the plaintiff and see if they are willing to deal to get out of this. The worse they can say is no and then you file you case with JAMS/AAA and wait until they get the bill to call them again. Sometimes they will call you but most of the time, you need to reach out to them.

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On 3/11/2021 at 9:15 AM, WhoCares1000 said:

Actually, just before you file, you should call the plaintiff and see if they are willing to deal to get out of this. The worse they can say is no and then you file you case with JAMS/AAA and wait until they get the bill to call them again. Sometimes they will call you but most of the time, you need to reach out to them.

I will do just that. Whats a good offer? 30, 40, 50%?

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17 hours ago, dontwearmasks said:

I am not following. I am going to offer to settle for $250 on a 7k debt?

It is going to cost you $250 anyways to start arbitration. For them, it will cost into the 5 figure to continue into arbitration. They therefore can accept the $250 to walk away from an expensive process or go into the process and either spend a ton more money to collect the $7k or get nothing. The $250 is a feeler by the way to see what they are willing to accept to walk away at this point. In other words, see what they counter with before you file.

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7 hours ago, WhoCares1000 said:

It is going to cost you $250 anyways to start arbitration. For them, it will cost into the 5 figure to continue into arbitration. They therefore can accept the $250 to walk away from an expensive process or go into the process and either spend a ton more money to collect the $7k or get nothing. The $250 is a feeler by the way to see what they are willing to accept to walk away at this point. In other words, see what they counter with before you file.

wow, I was thinking to start at 30%.

BTW, I tried to offer these guys 50% long ago before the lawsuit and they blew me off. They came back 90% lump sum or payment plan for 100%. So yes, I would love to stick it to them.

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22 hours ago, LoveIsPower said:

Do you mean your MTC got stayed?  I have my MTC Arbitration hearing at the end of May.

I had the MTC hearing and it was granted. The case itself, the proceedings was stayed and a new hearing was set for 6 months out for Arbitration case review.

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4 hours ago, dontwearmasks said:

wow, I was thinking to start at 30%.

BTW, I tried to offer these guys 50% long ago before the lawsuit and they blew me off. They came back 90% lump sum or payment plan for 100%. So yes, I would love to stick it to them.

You have to understand, when you contacted them long ago, they were not willing to settle and you really had no leverage for them to settle. Since that time, they filed a lawsuit, you answered, and got the case moved to arbitration. They have already spent way more money on the case and the fun is just getting started. Now that the MTC Arbitration is granted, PRA has only these choices:

1) Get the case dismissed on your terms
2) Pay out a 5 figure price to take this case all the way.

They are hoping that you think this is the end of it and they can go back to court and state that you did not mean to do arbitration but you were just trying to avoid the issue. As you and I know, that is not happening.

The 6 month review is to ensure that you are taking the case to arbitration and that it is moving along. Once you file for arbitration, you have fulfilled your requirements for the MTC. At that point, PRA has to either follow you into arbitration (at $5000 to start) or do nothing and face the wrath of the judge in 6 months when you file a motion for sanctions. PRA knows this as this is not their first time at this rodeo.

By offering the low ball amount of the $250 filing fee, you are not expecting to get out for that much. Once they are done saying no, you then ask what they are thinking for settlement. If they still go with the 90% - 100%, ,simply tell the paralegal/collector that they are wasting your time in not offering a reasonable settlement and that you are sending off the paperwork for arbitration. If they offer around 50%, then you have a starting point to try to negotiate to 30%. Again, the worse they say is no and then you are out the $250. You can also state what once you file, the only deal you will accept is a mutual dismissal with prejudice (where they get nothing). That might drive them to bargain.

PRA already has to know that their backs are against the will. Again, they have seen this before. In fact, that may be why they did not send an attorney for the MTC or even oppose it in the first place.

So yes, offer them the low ball offer of $250 to start and see if they want to deal or not. If not, then go through with starting arbitration. If they want to deal, take 30 days and see if you can negotiate a reasonable amount. You have 6 months.

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