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  • Posts

    • This is the JDB SOP. Did you save the envelope? Does it have a postmark date? Their response will have a date filed with the court stamp.    (IANAL) I would title this DEFENDANT'S SUR-REPLY TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALTERNATIVE , STAY PROCEEDINGS PENDING ARBITRATION
    • The above is my draft so far.... is it too much? If anyone would be willing to look it over for me I would appreciate it. Do I need to have the affidavit, notary, and filed and served part at the bottom?
    • MEMORANDUM IN REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT'S MOTION TO COMPEL ARBITRATION PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Tiffany Waddell, Defendant in pro se, hereby respectfully objects to Plaintiff’s Response to Defendant’s Arbitration Demand.  In support of its objection, Defendant will show the Honorable Court as follows: 1. In accordance with MCR 2.116, Plaintiff’s response was filed in an untimely manner, and should therefore be stricken. 2. Defendant filed a counter-affidavit pursuant to MCL 600.2145 with answer and affirmative defenses, therefore disputing Plaintiff’s “Account Stated.” 3. Due to the fact that “Account Stated” is being disputed by Defendant, Plaintiff and Defendant are both subject to the Synchrony Bank/Amazon.com Store Card Account Agreement governing the alleged account. Wherein the cardmemember agreement clearly states: PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. 4. On September 15, 2017, Defendant filed an Answer and Affirmative Defenses, requesting arbitration. 5. On September 15, 2017, Defendant filed a Motion to Compel Arbitration Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration. 6. Defendant initiated arbitration via JAMS, and has copy of JAMS acceptance to resolve case. 7. Defendant objects to Midland’s claim of lack of cost efficiency to arbitrate.  9 U.S.C. § 2 of the Federal Arbitration Act states "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." It makes no exclusion for an amount of a claim. But "the `risk' that [a claimant] will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement."  In re Poly-America, L.P., 262 S.W.3d 337, 356 (Tex.2008).  It is not sufficient for the party to show that it is at risk of incurring excessive fees and costs.  Venture Cotton Cooperative v. Freeman, 11-11-00093-CV, 494 S.W.3d 186, 192, 2015 WL 1967251 (Tex.App. — Eastland Apr. 30, 2015, no pet. h.). 8. Defendant objects to Plaintiff’s claim that the Defendant has not provided Court with any reason to dismiss case or legitimate reason to remove it to arbitration, as it is Defendant’s contractual right to elect/initiate arbitration per cardmember agreement; no reason is needed. Per cardmember agreement: 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. 9. Defendant objects to Plaintiff’s claims about wasting the Court’s time and money, by choosing to resolve this manner out of the Courts, and through arbitration. 10. Plaintiff offers no proof or case law to support their position that arbitration should not be granted.  11. The Supreme Court has made clear on multiple occasions that if a valid arbitration clause exists, then arbitration is the preferred method of resolution over court.  Plaintiff has not refuted the arbitration clause or stated in any way that it is invalid. Therefore, arbitration must be ordered.
                  Based on the above arguments, Defendant, Pro Se, requests the Honorable Court to GRANT Defendant’s Motion to Compel Arbitration. WHEREFORE, Defendant respectfully requests the Honorable Court to follow the arbitration clause in this cardmember agreement governing the alleged account, and stay proceedings pending the outcome of the contractually specified arbitrator.  
    • True, but if I file, the judge has to consider my Motion, right?
    • this is really hard to answer without local knowledge of how these pre-trial conferences work where you are.  For example, where I'm from discovery requests and deadlines are liberally enforced and a party can serve it at the pre trial conference in court, or a court will give a couple chances to serve the documents. 
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