Author Topic: Motion For Sanction/Dismissal for violating MTC Arb Order  (Read 1694 times)

0 Members and 1 Guest are viewing this topic.

cjb3

  • Valued Member
  • Posts: 70
Motion For Sanction/Dismissal for violating MTC Arb Order
« on: June 03, 2011 12:39:51 PM »
My Motion below resulted in the Plaintiff  filing a Dismissal W/O Prejudice.

The Motion is pretty self explanatory and should be used only after your MTC Arb has been granted.

NOTE 1: The Court, on its own, set a "Status Conference"  4 months after the MTC Arb Hearing, so I came up
with this Motion and decided to run with it.

NOTE 2: I also received a letter from JAMS in early April that the Plaintiff  has not paid their fees.

Plaintiff filed a MTD 11 days before the Conference Hearing.

Plaintiff's Atty informed me that they no longer represent FIA.

I informed JAMS and they closed the case and refunded my fee (Trueq's "Nuclear" scenario has begun).

Hope this will help if your circumstances fit.



_____________________
DEFENDANT’S MOTION FOR SANCTIONS OR, IN THE
ALTERNATIVE MOTION TO DISMISS WITH PREJUDICE

     Comes now, Defendant, XXXXX XXXXX, and respectfully requests the Court to Grant this Motion for Sanctions or, in the Alternative, Motion to Dismiss With Prejudice and submits the following:

   1 -  On January 10, 2011, the Defendant and Plaintiff were ordered into Consumer Private / Contractual Arbitration with JAMS.
   2 -  Defendant Initiated Arbitration with JAMS on January 21, 2011, including Defendants $127 fee per the Cardholder Agreement.  JAMS received Defendants paperwork on January 24, 2011 at their Las Vegas office (Exhibit A).
   3 -  On January 31, 2011, the Defendant and Plaintiff were sent letters from JAMS requesting the Plaintiff to pay their $550 fee (Exhibit B).
   4 -  On February 10, 2011, the Defendant and Plaintiff were sent letters from JAMS with a corrected fee amount to be paid by the Plaintiff of $673.  This amount includes the $123 portion of the Defendants fee to be paid by the Plaintiff, per the Cardholder Agreement (Exhibit C).
 
   5 -  On March 10, 2011, the Defendant and Plaintiff were sent letters from JAMS stating that the Plaintiff has not yet paid their required $673 fee (Exhibit D).
   6 - As of January 24, 2011, Defendant has complied with the Order of January 10, 2011 as Consumer Private / Contractual Arbitration with JAMS is Initiated.
   7 -  Commencement is the next step after initiation of Arbitration.  This is being stalled for the past 2 months by the Plaintiff as the $673 fee has not been paid.
   8 -  The Plaintiff and their attorney regularly file many complaints every month at a cost of thousands of dollars per month.  Delay of payment of JAMS fee’s is unreasonable and shows no good faith.
   9 -         LR3-104. Disciplinary action for failure to comply.       
      Any willful violation of these rules shall, in addition to other appropriate remedies,
subject the attorney or non-complying party to such disciplinary or other action as the
judges of the third judicial district court shall deem appropriate, including civil contempt.       

   Wherefore, Defendant respectfully asks this Court to Sanction the Plaintiff and/or their Attorney for willfully violating the Order of January 10, 2011 by not, in good faith, pursuing Arbitration  or, as an Alternative remedy, dismiss Plaintiff’s complaint with prejudice.

I state under penalty of perjury that the foregoing is true and correct.
« Last Edit: June 03, 2011 04:01:49 PM by Admin0248 »

kevinmanheim

  • Valued Member
  • Posts: 9298
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #1 on: June 03, 2011 01:10:48 PM »
Where did you get the $127 figure?

Amazing that JAMS refunded your fee. Seldom happens.

Great motion, BTW.

cjb3

  • Valued Member
  • Posts: 70
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #2 on: June 03, 2011 04:18:07 PM »
Per the Cardholder Agreement, which was provided by the Plaintiff, is said something to the effect that they will pay my Arb fees minus what it would cost to file in court.

It cost the Plaintiff $127 to file against me, which is the court cost for filing a Civil Action with Court Arb.

I emailed JAMS about what happened and asked them how long before they administratively dismiss for lack of payment by FIA, they responded back saying this email was good enough and they would refund my paid fee.

« Last Edit: June 03, 2011 04:22:36 PM by cjb3 »

cprems

  • Valued Member
  • Posts: 2188
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #3 on: June 03, 2011 10:56:10 PM »
Can you motion the Court to dismiss with prejudice, since the CA failed to Arb the complaint against you?

Do you have violations on the CA?

I would now hammer the CA in Federal Court with the violations and see if they will for a mutual dismissal with prejudice, settle this case.

Just what I would consider doing.


Per the Cardholder Agreement, which was provided by the Plaintiff, is said something to the effect that they will pay my Arb fees minus what it would cost to file in court.

It cost the Plaintiff $127 to file against me, which is the court cost for filing a Civil Action with Court Arb.

I emailed JAMS about what happened and asked them how long before they administratively dismiss for lack of payment by FIA, they responded back saying this email was good enough and they would refund my paid fee.
ALL my postings have NO legal value.

 I AM the "village idiot" please hold my posts to this standard.

 If you need legal Counsel - contact an Attorney.

cjb3

  • Valued Member
  • Posts: 70
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #4 on: July 09, 2011 06:30:31 AM »
Sorry for the delay in answering.  I just realized I didn't answer.


Can you motion the Court to dismiss with prejudice, since the CA failed to Arb the complaint against you?
Since the SOL is up in 4 months, I think I will just let sleeping dogs lay.

Do you have violations on the CA?
Yes, to the tune of a 33k counterclaim which, IMHO, was prematurely dismissed.  This was gonna be my Arb Claim, though.

I would now hammer the CA in Federal Court with the violations and see if they will for a mutual dismissal with prejudice, settle this case.
Again, the SOL issue.

Just what I would consider doing.

cprems

  • Valued Member
  • Posts: 2188
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #5 on: July 09, 2011 01:46:45 PM »
Was your counterclaim dismissed with or without prejudice?

If you are counterclaiming under the FDCPA - there is a one year SOL.

If there are State claims these may be longer.

You could wait out the SOL, but remember any SOL is tolled during litigation. So check the date they filed and add back the time you have been in litigation.

I also believe arbitration tolls the SOL for the debt as well. I could be wrong on this issue though.

Can anyone else confirm this?
ALL my postings have NO legal value.

 I AM the "village idiot" please hold my posts to this standard.

 If you need legal Counsel - contact an Attorney.

silverzgirl

  • Valued Member
  • Posts: 3534
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #6 on: July 09, 2011 02:25:05 PM »
I don't see why not; litigation in any form tolls the SOL for violations, otherwise delays would kill most suits. Arbitration is just a private forum.
“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.

cjb3

  • Valued Member
  • Posts: 70
Re: Motion For Sanction/Dismissal for violating MTC Arb Order
« Reply #7 on: July 09, 2011 06:44:39 PM »
My Counterclaim was dismissed with prejudice BEFORE the Plaintiff provided me with a copy of the Cardholder Agreement.

The Agreement showed the "assigns" issue which was a basis for the dismissal, but instead of filing a Reconsider Motion, I opted for the Arb Clause.