Author Topic: Summons by Gurstel in Arizona Asking for Assistance  (Read 11589 times)

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CleaningUp

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #225 on: November 21, 2017 04:11:10 PM »
You don't get to ask for a "new arbitor" at any point in segment of the process.  Once it is in the hands of the selected arbitor, it is his case to administer.

You CAN file an objection to an arbiter's decision; you can file an of objection to a submission by the other side; you can file/submit motions on your own.  The process proceeds until someone doesn't pay the bill due or the case is decided.

If you don't like the decision and the contract/forum rules allow, you can file an arbitration appeal in which you can allege an error on the part of the original arbiter.

But you cannot change arbiter in mid process without cause, and your thinking he has made an decision that prejudices your interest doesn't rise to the standard of "cause".

No "Special Sauce" aisle in this store.

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #226 on: November 21, 2017 07:50:39 PM »
You don't get to ask for a "new arbitor" at any point in segment of the process.  Once it is in the hands of the selected arbitor, it is his case to administer.

You CAN file an objection to an arbiter's decision; you can file an of objection to a submission by the other side; you can file/submit motions on your own.  The process proceeds until someone doesn't pay the bill due or the case is decided.

If you don't like the decision and the contract/forum rules allow, you can file an arbitration appeal in which you can allege an error on the part of the original arbiter.

But you cannot change arbiter in mid process without cause, and your thinking he has made an decision that prejudices your interest doesn't rise to the standard of "cause".

No "Special Sauce" aisle in this store.

OK, thanks for clarifying.  That is why I asked because Rule 15(i) states that at any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause.  So what rises to the standard of cause? 

If the arbitrator breaks the agreed upon written schedule from the pre-conference and rules on their MTD without hearing her Response, that will be a third demonstration of potential bias.  The first were statements that the arbitrator did not want to cost Discover/Gurstel a lot of money.  The second was allowing for summary deposition to end the entire arbitration case prior to the in person hearing (violation of Minimum Standards Rule 5) and in violation of Rule 18 of the Comprehensive Rules which either requires both parties to agree or only a particular claim or issue to be deposed, but not the entire complaint. 

She is objecting to everything and has from the start.  She has a solid paper trail of all objections and Motions.  If this does occur with the MTD, she will request another conference call to object and argue her response.  She will definitely file for an appeal within 30 days and use this as part of it, if it comes to that. 

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #227 on: November 27, 2017 04:47:37 PM »
 Quick update - Arbitrator gave extension until mid month for responses and he won't rule until early next year.  Discovery begins mid month with one deposed party per side to be scheduled early next year as well.   

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #228 on: December 05, 2017 09:05:06 AM »
Document received from the court of pending dismissal without prejudice.  I presume Gurstel will file a Motion to continue the case as JAMS arbitration is ongoing.  Would it be prudent to file a Response to that Motion stating that JAMS is the proper jurisdiction and the case should be dismissed to be resolved solely in JAMS?  Additionally the CMA states that if arbitration is chosen, neither you nor we have a right to litigate that Claim in court or have a jury trail on that Claim. 

Thanks.

fisthardcheese

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #229 on: December 05, 2017 11:27:22 AM »
As usual, wrong information is being given in regards to the JAMS process here by folks who have never even been in arbitration.

You absolutely can ask for a new arbitrator if you believe they are not following the rules or their own orders or the agreed upon laws that apply.  It is spelled out in Rule 12(j):

At any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause. The challenge must be based upon information that was not available to the Parties at the time the Arbitrator was selected. A challenge for cause must be in writing and exchanged with opposing Parties, who may respond within seven (7) days of service of the challenge. JAMS shall make the final determination as to such challenge. Such determination shall take into account the materiality of the facts and any prejudice to the Parties. That decision will be final.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

BellEbutton

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #230 on: December 05, 2017 04:28:30 PM »
As usual, wrong information is being given in regards to the JAMS process here by folks who have never even been in arbitration.

You absolutely can ask for a new arbitrator if you believe they are not following the rules or their own orders or the agreed upon laws that apply.  It is spelled out in Rule 12(j):

At any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause. The challenge must be based upon information that was not available to the Parties at the time the Arbitrator was selected. A challenge for cause must be in writing and exchanged with opposing Parties, who may respond within seven (7) days of service of the challenge. JAMS shall make the final determination as to such challenge. Such determination shall take into account the materiality of the facts and any prejudice to the Parties. That decision will be final.

Just curious:  How does a failure to follow the scheduling agreement amount to "information that was not available to the Parties at the time the Arbitrator was selected"?

fisthardcheese

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #231 on: December 05, 2017 06:10:35 PM »
Just curious:  How does a failure to follow the scheduling agreement amount to "information that was not available to the Parties at the time the Arbitrator was selected"?

Because how would one know that the arbitrator would allow the other side to create their own schedule regardless of what the arbitrator ordered on the initial conference call when the arbitration selection was made?  It's not like JAMS puts notes in the arbitrator's bio that says they tend to give great leniency to a company over consumers.  Therefore, this information was not previously available.  And if someone suspects the arbitrator is not able to remain bias, they are absolutely within their rights to request that the arbitrator be removed and a new arbitrator selected.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Jane007

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #232 on: December 06, 2017 11:25:12 PM »
Document received from the court of pending dismissal without prejudice.  I presume Gurstel will file a Motion to continue the case as JAMS arbitration is ongoing.  Would it be prudent to file a Response to that Motion stating that JAMS is the proper jurisdiction and the case should be dismissed to be resolved solely in JAMS?  Additionally the CMA states that if arbitration is chosen, neither you nor we have a right to litigate that Claim in court or have a jury trail on that Claim. 

Thanks.
It would be prudent to file a response to any motion they file.

When you filed your motion to compel, you likely cited either the FAA or the AZ-UAA (ARS 12-1501-12-1518), or both.

AZ-UAA and all az state law precedent requires that an action be stayed when a motion to compel is granted.  It is rare that the az lower courts make the stay explicit via the order granting the motion to compel.  You can move to make the stay explicit pending completion of arbitration.

Even if you cited only the FAA in your state court motion to compel, the AZ-UAA and az state court precedent is still governing over these procedural matters.  All az court precedent states that a stay is proper and a dismissal is improper when a motion to compel arbitration is granted.

That doesn't mean that they can seek to make the case active again while arbitration is ongoing. The stay should be continued and/or made explicit.

Even if they don't respond to the court notice and the court dismisses the action, they could easily get that reversed within a year.

Also note that the legal force of your granted motion to compel is lost if the action is dismissed in the court that issued the compel order.

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #233 on: December 10, 2017 07:20:56 AM »
As usual, wrong information is being given in regards to the JAMS process here by folks who have never even been in arbitration.

You absolutely can ask for a new arbitrator if you believe they are not following the rules or their own orders or the agreed upon laws that apply.  It is spelled out in Rule 12(j):

At any time during the Arbitration process, a Party may challenge the continued service of an Arbitrator for cause. The challenge must be based upon information that was not available to the Parties at the time the Arbitrator was selected. A challenge for cause must be in writing and exchanged with opposing Parties, who may respond within seven (7) days of service of the challenge. JAMS shall make the final determination as to such challenge. Such determination shall take into account the materiality of the facts and any prejudice to the Parties. That decision will be final.

Thanks for confirming this and adding more details.  Right now, we have noticed a couple of issues that lean towards bias but it is not enough yet to reach the level of cause for a dismissal attempt.  We are documenting everything though. 

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #234 on: December 10, 2017 07:26:42 AM »
It would be prudent to file a response to any motion they file.

When you filed your motion to compel, you likely cited either the FAA or the AZ-UAA (ARS 12-1501-12-1518), or both.

AZ-UAA and all az state law precedent requires that an action be stayed when a motion to compel is granted.  It is rare that the az lower courts make the stay explicit via the order granting the motion to compel.  You can move to make the stay explicit pending completion of arbitration.

Even if you cited only the FAA in your state court motion to compel, the AZ-UAA and az state court precedent is still governing over these procedural matters.  All az court precedent states that a stay is proper and a dismissal is improper when a motion to compel arbitration is granted.

That doesn't mean that they can seek to make the case active again while arbitration is ongoing. The stay should be continued and/or made explicit.

Even if they don't respond to the court notice and the court dismisses the action, they could easily get that reversed within a year.

Also note that the legal force of your granted motion to compel is lost if the action is dismissed in the court that issued the compel order.

I am a bit confused so will ask questions for cliarification. 

First, does it matter if the court dismissed and the MTC is lost given the JAMS arbitration is current and active? 

Second, does this mean that if they want a continuance until the JAMS arbitration is completed, you are advising I agree with them in response? 

Wouldn't we want the case dismissed even without prejudice?  Does it slow Discover/Gurstel down to have to refile later after arbitration?  Wouldn't that be an advantage? 

Thanks.

CleaningUp

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #235 on: December 10, 2017 04:23:12 PM »
Caution:  Just because an arbitrator's ruling on motions goes against you is not cause for accusation of bias.

And what happens if you allege bias and fail to get the arbitrator removed?  Do you really think that you are going to be the on-going recipient of the benefits of any doubt?  Do you really think that you aren't going to be nit-picked to death over every minor transgression of the rules that YOU commit?

Get you head out of the imaginary "special sauce".  It is for your on benefit to open your eyes and see reality.

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #236 on: December 10, 2017 10:02:08 PM »
Caution:  Just because an arbitrator's ruling on motions goes against you is not cause for accusation of bias.

And what happens if you allege bias and fail to get the arbitrator removed?  Do you really think that you are going to be the on-going recipient of the benefits of any doubt?  Do you really think that you aren't going to be nit-picked to death over every minor transgression of the rules that YOU commit?

Get you head out of the imaginary "special sauce".  It is for your on benefit to open your eyes and see reality.

I never said they were.  Pay attention please.  If they break the JAMS rules, which has occurred once already, then yes, we can build a case for removal if it continues.  I already said that it is only one or two actions that have given us pause, we have objected both times, and we have documented them. 

We are focused on the actual arbitration now and not what you imagine here.  The rest of Discovery is due the end of the week, and I am trying to understand how best to deal with the court saying they intend to dismiss the case without prejudice.  Do you have any input to give on that? 

CleaningUp

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #237 on: December 11, 2017 03:01:14 AM »
Question...who decides that he has "broken the rules"?

Note that until he actually denies your request for an in-person hearing, he hasn't broken the rules.  And denying your motions and requests are well within the rights of an arbitrator to do.

As for something to add to the conversation?

Making you think and think about the range of consequences for what you choose to do might just be of value to your overall mission.

You are highly reminiscent of the guy that took 72 pages to convince that he was barking up the wrong tree.

You often seem to be barking without even a tree being in view!

And that bit about how much he charges per hour is irrelevant to both the arbitration process and your case...

But, if you had given the remarks any thought, you would have understood that irrelevance.  You had your shot at striking him.


« Last Edit: December 11, 2017 03:06:23 AM by CleaningUp »

TM97

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #238 on: December 11, 2017 07:29:46 AM »
Question...who decides that he has "broken the rules"?

Note that until he actually denies your request for an in-person hearing, he hasn't broken the rules.  And denying your motions and requests are well within the rights of an arbitrator to do.

As for something to add to the conversation?

Making you think and think about the range of consequences for what you choose to do might just be of value to your overall mission.

You are highly reminiscent of the guy that took 72 pages to convince that he was barking up the wrong tree.

You often seem to be barking without even a tree being in view!

And that bit about how much he charges per hour is irrelevant to both the arbitration process and your case...

But, if you had given the remarks any thought, you would have understood that irrelevance.  You had your shot at striking him.

I never mentioned anything about how much an hour this arbitrator charges. 

I am well aware that arbitrators can rule as they choose to do.  What I have discussed here and another long term member supported it is that if the arbitrator doesn't follow the Consumer Minimums, the Comprehensive Rules, and/or changes without discussion the agreed upon scheduling from the pre-conference hearings, then yes, there may be bias.  We are documenting any instances and if it rises to the level of a more obvious bias, then we will consider asking for a removal based on an actual paper trail of facts and actions. 

fisthardcheese

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Re: Summons by Gurstel in Arizona Asking for Assistance
« Reply #239 on: December 11, 2017 12:20:35 PM »
Caution:  Just because an arbitrator's ruling on motions goes against you is not cause for accusation of bias.

And what happens if you allege bias and fail to get the arbitrator removed?  Do you really think that you are going to be the on-going recipient of the benefits of any doubt?  Do you really think that you aren't going to be nit-picked to death over every minor transgression of the rules that YOU commit?

Get you head out of the imaginary "special sauce".  It is for your on benefit to open your eyes and see reality.

Nothing happens if you fail to get the arbitrator removed.  The case continues as normal.  The arbitrator will not retaliate, because he will never know, since - if you actually knew how arbitration worked - the JAMS administrator case manager handles all requests to remove and replace arbitrators and the actual arbitrator is never looped in on the matter.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)