Author Topic: Cach LLC sueing us in Arizona for ~20,000  (Read 21596 times)

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Bruno the JDB Killer

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #15 on: December 25, 2015 09:57:20 PM »
I doubt they'll dismiss as this as this is AZ court, they will fight per the agreement which says they get to pick the arbitrator and think they can run over the pro se and pick court arbitration which the court will grant. Defendants in AZ court lose every time.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #16 on: December 25, 2015 10:02:59 PM »
I can't imagine CACH arbitrating.   If the OP did not file an answer, but instead filed a motion to dismiss or motion to compel arbitration, CACH seems more likely to just voluntarily dismiss before a MTC is granted.

trick

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #17 on: December 26, 2015 01:32:27 AM »
I can't imagine CACH arbitrating.   If the OP did not file an answer, but instead filed a motion to dismiss or motion to compel arbitration, CACH seems more likely to just voluntarily dismiss before a MTC is granted.

Use of the 12 (b) motion would be filed in lieu of an answer, you ask the court to dismiss in the alternative you ask the court to compel arbitration. 12 (b) is failure to state a claim from which relief can be granted.

wansu

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #18 on: December 26, 2015 03:29:31 AM »
How do I compel the court to accept a private arbitrator?

BellEbutton

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #19 on: December 26, 2015 03:38:42 AM »
Use of the 12 (b) motion would be filed in lieu of an answer, you ask the court to dismiss in the alternative you ask the court to compel arbitration. 12 (b) is failure to state a claim from which relief can be granted.

I know that's allowed.  But the rules also allow the plaintiff to voluntarily dismiss without prejudice and with no one's consent if no answer is filed.

trick

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #20 on: December 26, 2015 04:02:50 AM »
Its more of a strategic move, if you file the motion 12 and ask the court to dismiss there is a possibility that you might get it. If you get it dismissed they will never refile again.  It also shows that your not afraid to play with them. If you ask the court to compel in the alternative in a motion 12 (b) it will stay the action.  This has the effect of not allowing them to sell it as the court would always control it.

coltfan1972

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #21 on: December 26, 2015 04:04:24 AM »
How do I compel the court to accept a private arbitrator?

Read the arbitration forum.  That question has been answered hundreds of times in numerous posts.   

However, the very broad and "generally speaking" answer is that you file a motion to compel private arbitration.   
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

BellEbutton

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #22 on: December 26, 2015 04:48:43 AM »
Its more of a strategic move, if you file the motion 12 and ask the court to dismiss there is a possibility that you might get it. If you get it dismissed they will never refile again. 

They would only be unable to refile if the court dismisses with prejudice.  What's wrong with filing an answer along with a motion to compel arbitration?  That would assure they could not voluntarily dismiss without either your consent or leave of the court.

Bruno the JDB Killer

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #23 on: December 26, 2015 12:56:52 PM »
Rule 41(a). Voluntary dismissal; by plaintiff or by order of court; effect
Currentness
1. Subject to the provisions of Rule 23(e), or Rule 66(c), or of any statute, an action may be dismissed (A) by the plaintiff without order of court by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or (B) by order of the court pursuant to a stipulation of dismissal signed by all parties who have appeared in the action. Such an order may be signed by a judge, a duly authorized court commissioner, the clerk of court or a deputy clerk. Unless otherwise stated in the notice or order of dismissal, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

2. Except as provided in paragraph 1 of this subdivision of this Rule, an action shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon the defendant of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

trick

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #24 on: December 26, 2015 03:24:38 PM »
They would only be unable to refile if the court dismisses with prejudice.  What's wrong with filing an answer along with a motion to compel arbitration?  That would assure they could not voluntarily dismiss without either your consent or leave of the court.
Filing an answer allows the plaintiff to move forward.  If an answer is filed, the plaintiff can file for Summary Judgement or a ruling on the pleadings. When you use the 12 motion you have stopped the wheels. The Plaintiff can only respond to the rule 12 motion which includes the "if no dismiss, motion to compel."  Once you file a response or motion as allowed under rule 12 to the lawsuit, they cannot dismiss without your permission.

coltfan1972

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #25 on: December 26, 2015 03:41:04 PM »
Filing an answer allows the plaintiff to move forward.  If an answer is filed, the plaintiff can file for Summary Judgement or a ruling on the pleadings. When you use the 12 motion you have stopped the wheels. The Plaintiff can only respond to the rule 12 motion which includes the "if no dismiss, motion to compel."  Once you file a response or motion as allowed under rule 12 to the lawsuit, they cannot dismiss without your permission.

I agree with your strategy, except it's still the court just rubber stamping a dismissal if the Plaintiff asks.   

You're correct they can't dismiss as a matter of right with no court order after a response, but the Defendant not agreeing just means five more minutes of work to draft the Order for the court to sign.

After the court signs the dismissal order (which they will do 99.999% of the time), the court will then deny the Defendant's motion, not on the merits of the motion but as moot. 

Again, I agree with the strategy as to narrow the scope of the Plaintiff's next move, but at this early stage in the action a Plaintiff wanting a dismissal w/o prejudice is going to get it. 



LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

wansu

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #26 on: December 26, 2015 03:57:01 PM »
http://www.cardmemberagreements.org/fia/


FIA is their credit card division. Filing for private arbitration is your best shot at this point. The cost can be very high, and it just might be that AAA or JAMS will not take a case from CACH. Most JDBs will not arbitrate when faced with the expense, which can be astronomical.

Thank you for the link. Is this sample card contract enough to use? If we don't have the original contract from 2009, how do we enforce the arbitration clause?

20K is a good chunk of change, but JDBs have been know to walk away from bigger than that. It could cost them six figure to win, and they just won't spend it. The agreement specifies NAF, which no longer takes consumer cases, so the choice of a "similar" arbitrator is up to the bank. That's where the fight begins, they'll want court arbitration so they can run you over.

Court arb is NOT private arb as specified in the contract. They may whine about the cost of private arb, too bad. They don't have the option of not adhering to THEIR contract any more than you did when you failed to pay them.

" another nationally recognized, independent arbitration organization that uses a similar code of procedure."

In Arizona, does court arbitration fall under this? If not, why? Thank you.

wansu

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #27 on: December 26, 2015 04:05:11 PM »
It was asked earlier if proper service was made. Monday the 28th will be 14 days since they posted the summons on our gate. This is a copy of the order. They were also supposed to mail it to us by certified mail. They never did. Does that count for anything? Thank for all the help.

"Upon Plaintiff's Motion to Allow Service of Process Upon Premises by Alternative Methods, and good cause appearing, therefore, It is Ordered, that service of process of the Summons, Certificate of Arbitration, and Complaint upon the Defendants, [name]and [name], be made by posting said Summons, Certificate of
Arbitration, Complaint and Order on the Defendants' property located at and , Tucson, Arizona and by mailing a copy of said Summons, Certificate of Arbitration, Complaint and Order to the Defendants by Regular First Class Mail and by Certified Mail. A return receipt is requested to the Law Office of Joe Pezzuto, LLC,"...
"and that such service be considered valid due process under the situation. DONE IN CHAMBERS this day of _, 2015.
HON. CATHERINE WO DS"

BellEbutton

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #28 on: December 26, 2015 04:34:42 PM »
Filing an answer allows the plaintiff to move forward.  If an answer is filed, the plaintiff can file for Summary Judgement or a ruling on the pleadings. When you use the 12 motion you have stopped the wheels. The Plaintiff can only respond to the rule 12 motion which includes the "if no dismiss, motion to compel."  Once you file a response or motion as allowed under rule 12 to the lawsuit, they cannot dismiss without your permission.

No, you have not "stopped the wheels", and yes, they can voluntarily dismiss if you file a 12(b) motion.  Bruno posted Rule 41(a)(1).  That rule says that a plaintiff voluntarily dismiss before an answer or MSJ is filed.  A 12(b) motion is neither one of those.

"The plain language of Rule 41(a)(1) permits a plaintiff to voluntarily dismiss his own case without court order if he files a notice of dismissal before the adverse party serves an answer or motion for summary judgment. Accordingly, in Goodman v. Gordon, 103 Ariz. 538, 540, 447 P.2d 230, 232 (1968), our supreme court explained,

    It is now the well-settled rule that ... before [an] answer is filed the right to dismiss is absolute, self-executing, and accomplished automatically by plaintiff's filing a notice of dismissal. There need be no notice to defendant, no hearing on the matter, and no order of the court." Vicari v. Lake Havasu City, 222 Ariz. 218, 222, ¶ 13, 213 P.3d 367, 371 (App. 2009).


If you file a MTC with your answer, your motion would be filed before a possible MSJ.  If the plaintiff were to file an MSJ, you simply make sure that your motion is heard first as it should be because it was filed first.

coltfan1972

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Re: Cach LLC sueing us in Arizona for ~20,000
« Reply #29 on: December 26, 2015 05:08:56 PM »
It was asked earlier if proper service was made. Monday the 28th will be 14 days since they posted the summons on our gate. This is a copy of the order. They were also supposed to mail it to us by certified mail. They never did. Does that count for anything? Thank for all the help.

"Upon Plaintiff's Motion to Allow Service of Process Upon Premises by Alternative Methods, and good cause appearing, therefore, It is Ordered, that service of process of the Summons, Certificate of Arbitration, and Complaint upon the Defendants, [name]and [name], be made by posting said Summons, Certificate of
Arbitration, Complaint and Order on the Defendants' property located at and , Tucson, Arizona and by mailing a copy of said Summons, Certificate of Arbitration, Complaint and Order to the Defendants by Regular First Class Mail and by Certified Mail. A return receipt is requested to the Law Office of Joe Pezzuto, LLC,"...
"and that such service be considered valid due process under the situation. DONE IN CHAMBERS this day of _, 2015.
HON. CATHERINE WO DS"

Attacking service when you were not sewer served is a lot of work for pretty much the payoff only being buying yourself a few weeks of time.   If they did not serve you by certified mail, then you would likely win a motion to dismiss for improper service.   

However, they will just have you re-served.   The time to attack service is when you truly were given no notice and have a default against you or if the improper service will lead to the case being past the statute of limitations to re-file.

I'd just skip the service issue and go straight to a motion to compel arbitration.  That will take care of the court case.   

LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).