AP notice received today ... scared ... stressed ... long story thanks for helping

[scbendel]

Ok everyone, I need some help. My main basis for defense is the question: "were we acting as a fiduciary when we received the check from the insurance company?"

I'm finding some useful documents, but wanted to see if anyone here could provide some irrefutable proof or definitions or case citations that we were indeed not. This would put their whole claim at rest if we were not acting in a "fiduciary capacity".

Ready...go!

Thanks in advance

[justbroke]

What I call "real" court is all about evidence and getting such evidence admitted in order to establish facts. Just saying that you were not acting as a fiduciary is not evidence and you can't establish that as a fact simply by saying it. That's the fun -- or not so fun -- part about trials and establishing your case. You would introduce a series of evidence which somehow documents that you were not what they claim. You could also attack their claim that you were acting as a fiduciary by trying to get "their" evidence from being admitted (could be hard if these are "regular" business records... but hearsay is hearsay!).

I have a thread titled "(ALMOST) Everything you wanted to know about evidence" written by one of the Sr. Judges in the Florida Bankruptcy Middle District.

If you could establish that there's no case, maybe that would keep you from having to litigate and present a case in the trial part. At least in a trial, you could question their "record" keeper or other witnesses either on direct (by subpoenaing them) or on cross examination. This Plaintiff seems to be sure that they have a case, so you would need to do discovery and find out what evidence they are going to present at trial.

[scbendel]

They've already sent me their evidence attached to their discovery request. I'm assuming this is all they're submitting at trial. However they haven't reached out for our 26f conference as the judge's orders say. They are asking for us to fill out a non-uniform interrogatories packet and a request for discovery. I think this is very premature as they haven't sent initial disclosures or their half of the pretrial statement. After listening to the audio from our first scheduling hearing, the judge didn't open discovery either. I'm going to try and call the plaintiff and ask them why they're not following the judge's instructions but I don't want to poke the bear. Any suggestions? Our hearing is this Thursday. It's basically another rule 16 scheduling conference. At our first scheduling hearing, they hasn't reached out to us for pretrial statements and initial disclosures either. This will be the second hearing that they haven't done so. They're jumping the gun on discovery requests and IMO they seem very inexperienced with AP's. I hope to be able to play on that.

Here's another question: if I have enough evidence showing they don't have a case, would I file a MSJ? Or would I file a motion to dismiss?

Sorry for the "busy" reply, I've got a lot to accomplish between now and Thursday.

Thanks guys!

[despritfreya]

I've remained quite on this because it is an Arizona case.

If I recall correctly you have one of the new judges. Judge Nielsen (not your Judge) does not hold firm to the general rule that there must be a discovery plan in place. I do not know if any of the new judges feel the same way. Generally discovery opens once the Rule 16 scheduling conference is held however, generally there needs to be a meet and confer before it. If, after listening to the recording, you believe the ability to send discovery has not commenced then politely say something to the Judge next week. My guess, and this is a guess, is the Judge will give lip service to the "rules" and let the other side proceed. If there is a real dispute over what either side is asking for, that is a matter for either a "Motion for Protective Order" or a "Motion to Compel".

Des.

[scbendel]

Thank you Des. I appreciate all your help. I will post next week and let you know.

Yes we have the new judge.

[scbendel]

They are very clear in what they're asking for as far as the interrogatories go. Curious, what circumstances would make it ok for me to file for a protective order? Same goes for a motion to compel. Just more for curiosity sake.

[scbendel]

Hearing was today. Counsel is really dragging their feet. They're apparently waiting for our answers to interrogatories and discovery evidence before they draft the pretrial statement. Still no initial disclosures from them. Seriously thinking about filing a motion to dismiss for their lack of following the judge's rules. He wagged his finger at them again today, just barely. It's a joke to the judge that they have no respect for his rules. Anyhow, 30 days to get the pretrial statement done, next hearing is 30 days out where we will schedule an evidence hearing then schedule trial.

Anyone know or have any ideas when I should file a MSJ?
What would be the benefit of that?
I'm worried that if this goes to trial, the fancy-pants attorney will get whatever we submit thrown out, and leave us with nothing just like at arbitration. I'm not re litigating the fact that we lost the arbitration, but I am introducing evidence that shows we were not acting with malice. Seems like counsel won't like that. We did speak briefly and he says he isn't introducing any evidence from the initial suit, and I'm guessing because it will hurt the case he's trying to build (trying to show malicious intent).

Again another book from me, I apoligize.

This thread has gotten a lot of views...lol

Thoughts, anyone? Thanks again!

[bcss]

Scbendel, did you ever file a formal complaint with the Arizona Contractors Board for substandard work? As I understand contractor A worked on your house, did a lousy job, and contractor B had to come in to correct it. The board doesn't take kindly to this kind of thing. Arizona even has a consumer recovery fund. I lived in Arizona and had license there.

[scbendel]

Bcss, we never tried that. Honestly they were so "good at being crooked" that we figured it would be futile. But he thought is beginning to cross my mind again honestly.

[bcss]

As a contractor I like to see these kind of crooks run out of the trade. If you go to the board's website there is a pdf file that shows what is expected of each trade and the minimum workmanship standards. Look up the contractors record while you're at it, see if their license is/was current. Did they pull the proper permits? Carry workman's comp on workers? Ect ect...The board has offices all over the state. You may want to drop in and talk to them. Don't wait too long, there are time limits on complaints. Give them something else to worry about. Wish you the best of luck.

[scbendel]

I really wish we had. When our insurance company basically wrote us off and said "handle the dispute with them" we tried to file a complaint and they "squashed" it with fancy words, and the ROC removed the complaint as satisfied. Even though it was far from it. Now we're past the 2 year limit and our hands are tied fighting them to just get rid of this debt. We weren't malicious at all in our dealings with them, so there's no way we can lose...provided I can prove that to our judge.

Question that nobody has answered yet:

MSJ: what is it (basically), who files it (me I'm assuming), and when can it be filed? Do I have to notify the plaintiff as if it was something we were filing jointly?

Thanks again everyone.

[LadyInTheRed]

A motion for summary judgment is filed when there is no dispute about the relevant facts of the case. It asks the court to make a ruling based on the undisputed facts. It is usually filed after discovery is complete and the parties have disclosed their versions of the facts to each other.

[scbendel]

Thanks Lady!

[scbendel]

Another update.
Pretrial statements are being done today and tomorrow.
Their case is pretty strong, and I'm worried. They completely left 523(a)(4) out of their half, which is good. I'm still including in our half that we weren't acting as a fiduciary, and didn't commit defalcation, however. They're only citing 523(a)(6) saying that we willfully and maliciously caused harm to the property of another when we cashed the check.

I've found a lot of case law helping us out, and some they're citing as well. (Geiger)

The main argument I cannot defunct is about conversion. In Arizona, conversion can give rise to non dischargability when talking about (a)(6). Anyone?

Thanks again. I need help with this please!

[scbendel]

If anyone can point me to some Arizona case law regarding conversion and 523(a)(6), that would be awesome. I'm trying to polish this off by tomorrow as the deadline for submission is Friday.

Thanks again.