STATE OF MICHIGAN
IN THE 40th JUDICIAL DISIRICT COURT FOR THE COUNTY OF MACOMB
LVNV Funding LLC
MOTION TO DISMISS, OR IN THE ALTERNATIVE, STAY CASE AND COMPEL ARBITRATION
NOW COMES the Defendant ("DEFENDANT") Pro. Se. and hereby moves this court pursuant to 9 U.S.C Section 1. et seq, or in the alternative, MCR 3.602 for an Order compelling the parties to submit to arbitration and stay the case. In support of its motion, "DEFENDANT" shows the Court as follows:
1. On or about January 9, 2019, Plaintiff filed its Complaint against Defendant referencing "Credit One Bank contract," (See Complaint Exhibit) however Plaintiff failed to include a copy of said contract. DEFENDANT has located a copy of said contract and attached it as Exhibit 'A" a copy of the purported Cardholder Contract/Agreement (hereto referenced as ''Agreement").
2. The "Agreement" states “This Agreement, together with the application you previously signed and the enclosed Arbitration Agreement, governs the use of your VISA or Mastercard Account issued by Credit One Bank, N.A. (the “Account,” “Card” or “Card Account”). The words “you,” “your” and “Cardholder(s)” refer to all persons, jointly and severally, authorized to use the Card Account; and “we,” “us,” “our,” and “Credit One Bank” refer to Credit One Bank, N.A., its successors or assigns. By requesting and receiving, signing or using your Card, you agree as follows: Please read the Arbitration Agreement portion of this document for important information about your and our legal rights under this Agreement.” (Page 1 Paragraph 1) Exhibit A
3. The “Agreement” states “The Arbitration Agreement provided to you with this Agreement governs the enforcement by you and us of your and our legal rights under this Agreement.” (Page 5 Paragraph 1) Exhibit A
4. The cardholder agreement specifically states “Agreement to Arbitrate: You and we agree that either you or we may, without the other’s consent, require that any controversy or dispute between you and us (all of which are called “Claims”), be submitted to mandatory, binding arbitration. This arbitration provision is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing this Agreement.” (Page 6 Paragraph 1) Exhibit A
5. Additionally, the agreement states that "The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association ("AAA"), www.adr.org (800) 778-7879, or JAMS,www.jamsadr.org (800) 352-5267
6. The agreement states “You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if any such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Failure or forbearance to enforce this arbitration provision at any particular time, or in connection with any particular Claims, will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claims.” (Page 7 Paragraph 3) Exhibit A
7. Additionally, the agreement states “This arbitration provision shall survive: (i) termination or changes in the Agreement, the account and the relationship between you and us concerning the account; (ii) the bankruptcy of any party; and (iii) any transfer or assignment of your account, or any amounts owed on your account, to any other person. If any portion of this arbitration provision is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force.”
8. The DEFENDANT has therefore officially elected for arbitration with JAMS
Pursuant to 9 U.S.C. $ 1, et. seq., DEFENDANT moves this court for judicial relief to enforce the arbitration provision contained in the "Agreement" Pursuant to MCR 3.602, DEFENDANT moves this Court for a stay of these proceedings pending the outcome of its motion, and pursuant to , DEFENDANT moves this Court for a stay of these proceedings pending the outcome of the arbitration proceeding.
WHEREFORE, DEFENDANT respectfully moves this honorable Court for (i) an Order compelling PLAINTIFF to arbitrate, according to terms set forth in the "Agreement", their claims set forth in their Complaint, (ii) an Order staying these proceedings pending the Court's resolution of the motion, and (iii) an Order staying these proceedings pending the outcome of the arbitration proceedings.