TakeMidlandD0wn

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About TakeMidlandD0wn

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  1. He did say that he keeps the arbitration as a backup plan in all cases, but told me that this particular law firm lets the case go every time he files for discovery. On the other hand, they tend to fight arbitration. They will say that my agreement isn't the right one, and offer a different one and it becomes a back and forth for 12-18 months, if I don't slip up anywhere.
  2. Consumer atty picked up my case. He says that his procedure is to file for discovery. He has dealt with this law firm and Midland hundreds of times in the past. The process here, he says, is: 1. He answers for me (denies) then files for discovery. 2. They don't answer. 3. Time elapses and the plaintiff files for dismissal without prejudice 4. I call the credit bureaus and tell them its been dismissed. 5. Midland sends his office verification that it's been dropped off my credit. 6. I never hear from them again. Sound about right?
  3. Oh! haha! I clicked the link and looked at that case. I've seen it a few times before and thought I might have referenced it and you were catching the plagiarism or something. Awesome! Thanks for the help. I will add that in where appropriate. I've submitted ,y case to a consumer atty and he is emailing back and forth. He just asked for the Credit Agreement with the Arbitration clause after listening to the phone call recording I send to him. This has all happened today (a Saturday) so either he is just a hard worker or he likes what he sees or he is ruling my case out. Heh. We'll see.
  4. @debtzapper probably. I’ve pulled stuff from all over, rewriting some and other just plagiarizing outright. As I understand it “originality is not a highly prized attribute” in briefs and such.
  5. Furthermore, as stated in my Memorandum, state law also dictates that I also have to allege that they refused to arbitrate. Now, I just got off the phone with the atty for the plaintiff who told me that they "aren't going to arbitrate", but then waffled around and tried to get me to set up payments or something. When I pressed, they said that there was not an arbitration agreement. When I told them there, in fact, was and that I had gotten it from the CFPB, they told me that if the arbitration agreement wasn't on the reverse side of the CC bills they had, then it didn't exist. For five minutes they tried to tell me this and even said they would file a request for the rest of the paperwork (presumably from midland?) because they didnt have it. They even offered to send a request for debt verification for me. This is all AFTER they told me that it was in court pending litigation. Then they tried to say that we could both joint file an answer that the debt was valid and they owned it and i agreed to pay it. I said that I wouldn't do that because I had no proof that Midland owned the debt at all. They responded with crickets. I got it all recorded and luckily my wife is a professional transcriptionist and is going to transcribe the 25 minute phone call (I went through three people and 10 minutes of waiting) so I can add it to the pile to file.
  6. @Goody_Ouchless Under rule 4 of the ORDC (Oklahoma Rules for District Courts), the party seeking to compel arbitration must present a statement of the law and facts showing an enforceable agreement to arbitrate the issues presented by the petition. The application to compel arbitration must be supported by affidavits, pleadings, stipulations, and other evidentiary materials which are verified by a person having knowledge of their accuracy."
  7. I've been putting in the work, but it seems like there is no template I can find for what to do. I'm willing to do everything but I guess I'm overdoing it all somehow. I don't know how to do anything halfway. Any opinions or links to discussions that might help?
  8. @Goody_Ouchless Okay. There is statutory law saying that I have to present the facts and laws in a statement and attach evidence. I would love to make it shorter, but how? are there any allegations I should admit to or should I deny all of them? It seems to me that if I don't at least admit to having the original debt and account that there is no reason the judge should allow the arbitration.
  9. UPDATE: Court Clerk told me that I HAVE to answer before anything. I can put my MTC in at the same time, but if I don't answer there will be a default judgement regardless of the MTC. I've already drafted answers, but how will my denials reflect on the common sense of my motion to compel arbitration? Here are my answers: In response to Plaintiff’s complaint, the Defendant responds as follows: 1. In response to paragraph one of Plaintiff’s complaint: a. In response to the allegation that Webbank provided credit to the Defendant, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it. b. In response to the allegation of having, owning, or otherwise at any time being in possession or having dealings with an account number xxxxxxxxxxxxxxx9327, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it. c. In response to the allegation that the Defendant defaulted on this or any other obligation to Plaintiff, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it. d. In response to the allegation that the Defendant has been assigned to Plaintiff, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it. 2. In response to paragraph two of Plaintiff’s complaint: a. In response to the allegation that Defendant owes Plaintiff $2,210.64, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it. b. In response to the assertion that an ‘Affidavit of Account’ is attached to the summons and incorporated by reference, the Defendant admits that he has received an attached copy of an ‘Affidavit of Indebtedness’ but has not received an ‘Affidavit of Account’ and therefore denies the allegation contained within.
  10. Do I need to state that the court has no jurisdiction? I haven't done that. Also, I have another couple of points to ask about: 1. I can't find out if I need to file my answers first or not at all in Oklahoma. I know this is different in every state. In some, answering waives arbitration, in others you have to answer before you motion. The only thing I can find is in Title 12, section 2012 of Oklahoma statutes et seq. which talk about this. But I don't want to interpret the law without something to back me up. 2. In state law, I have to allege that they refused arbitration. Do I call and record the conversation? I found that in california, you don't even have to formally ask, you can just allege basically on the proof that you aren't in arbitration already. But is that true for Oklahoma? 3. Here is my Memorandum so far, does it need anything else? MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND TO COMPEL PRIVATE/ CONTRACTUAL ARBITRATION The undersigned respectfully requests that this Court compel arbitration per the agreement through JAMS under its Commercial Arbitration Rules now in effect. This is appropriate as Oklahoma has established a policy of favoring arbitration, the parties are both subject to a valid arbitration agreement, and the arbitration clause contained in the Agreement is clear and unambiguous. As such, this Court should compel arbitration. I. Statement of the Law and Facts On January 2, 2018, the Defendant received a copy of the Plaintiff's Summons and Petition for Indebtedness. Plaintiff’s Affidavit of Indebtedness alleges that the defendant opened a WebBank account on 2013-02-16, which was then sold to Dell Financial Services L.L.C. on or about 2016-11-28. A. Credit Agreement and Arbitration Clause The Defendant found and retrieved a copy of the original Credit Agreement (Exhibit A, hereinafter “Agreement”) from the Consumer Financial Protection Bureau’s (“Bureau”) website, which pertains and belongs to the WebBank Account in question. The Bureau maintains a database of credit card agreements from hundreds of card issuers. This is accomplished through the application of Regulation Z. Regulation Z (12 CFR 1026) as issued by the Bureau to implement the Federal Truth in Lending Act –which is contained in title I of the Consumer Credit Protection Act, as amended 15 U.S.C. 1601 et seq.—requires creditors to submit all Credit Agreements to the Bureau and onto their websites, publicly available. The original Agreement includes an arbitration clause. The Arbitration Clause is valid and enforceable and the Agreement is clear and unambiguous. The Agreement states (emphasis added): 1. “For the purposes of this arbitration provision, the terms “we” and “us” shall mean WebBank and Dell Financial Services L.L.C., their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors, assigns and any purchaser of the Account or any receivables arising from the use of the Account, and each of their respective employees, directors and representatives.” The Plaintiff claims to be the assign of the account and is, therefore, subject to this Agreement. 2. “Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement (“Claim”) shall be decided, upon the election of you or us, by binding arbitration.” Defendant elects arbitration. 3. “The party initially requesting arbitration shall select either the American Arbitration Association (“AAA”) or JAMS (originally, Judicial Arbitration and Mediation Services) as the arbitration administrator.” Defendant selects JAMS. 4. “This arbitration provision shall survive termination of your Account as well as the repayment of all amounts you owe under the Agreement. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced…” B. Applicable Law 1. Oklahoma Revised Uniform Arbitration Act Oklahoma Statute title 12, §1856 states: "[A]n application for judicial relief under the Uniform Arbitration Act must be made by application and motion to the court and heard in the manner provided by law or rule of court for making and hearing motions." The Defendant hereby applies and motions the court pursuant to this statute. Oklahoma Statute title 12, § 1857(A) states: “An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.” This section is a clear expression of Oklahoma's policy favoring arbitration agreements. The limited resources of the court should not be wasted upon a suit wherein exists a contract or agreement for which there is a valid and enforceable arbitration clause. See, Voss v. City of Oklahoma City, 1980 OK 148, 618 P.2d 925 and/or Rollings v. Thermodyne Indust., Inc., 1996 OK 6, 910 P.2d 1030. Oklahoma Statute title 12, §1858 (A) states: “On application and motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement . . . If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. The court may also tax costs against the party opposing the motion if the court concludes the opposition was not brought in good faith. The Defendant, having applied and motioned, and showing said agreement (attached below as Exhibit A), so alleges the Plaintiff’s refusal to arbitrate pursuant to the agreement. Attached below and incorporated by reference is an Affidavit supporting the facts of this motion. (“Affidavit of Defendant”) 2. Federal Arbitration Act The Federal Arbitration Act (the “FAA” or the “Act”) provides that written arbitration agreements are “valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1999). The main purpose of the Arbitration Act is “to overcome courts’ refusals to enforce agreements to arbitrate.” Allied-Bruce, 513 U.S. at 270. In passing the FAA, Congress was “motivated first and foremost by a desire to change this [trend],… to enforce [arbitration] agreements into which parties had entered, and to place such agreements ‘upon the same footing as other contracts.’” Id. At 270-71 (citations omitted) (second alteration in original). To fulfill the purpose of enforcing arbitration clauses more uniformly throughout the country, Congress established a broad principal of enforceability within the provisions of the FAA. Doctor’s Assoc. V. Casarotto, 517 U.S. 681, 685 (quoting Southland Corp. v. Keating, 465 U.S. 1, 11 (1984)). The Supreme Court has determined that “Congress would not have wanted state and federal courts to reach different outcomes about the validity of arbitration in similar cases.” Allied-Bruce, 513 U.S. at 72, citing Southland Corp., 465 U.S. at 15-16. Accordingly, the “the Court also concluded that the Federal Arbitration Act preempts state law; and it held that state courts cannot apply state statutes that invalidate arbitration agreements.” Id. Hence, the outcome should be the same in state and federal court, applying state or federal statutes. C. Conclusion Defendant respectfully requests that this Court compel the arbitration of the dispute between Plaintiff and Defendant. The parties are subject to a valid, clear and unambiguous arbitration agreement requiring arbitration of claims. A dispute has now arisen concerning Defendants’ alleged debt to the Plaintiff. As such, the arbitration provision in the agreement between the parties should be given its full force and effect and this case should proceed through final and binding arbitration before JAMS, formerly Judicial Arbitration and Mediation Services. Adequate time should be provided to Plaintiffs to file an appropriate Answer. This lawsuit should be stayed pending binding arbitration. Oklahoma law (as articulated by both the Oklahoma Legislature and the Oklahoma Supreme Court), as well as the Federal Arbitration Act, uniformly hold that the arbitrability of disputes agreed upon in a written Contract or Agreement must be enforced. Moreover, Oklahoma law consistently enforces the clear and unambiguous language of contracts, particularly broad arbitration provisions such as that presented here. In this case, the clear and unambiguous contractual provision requires arbitration of: “[A]ny claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement.” Pursuant to both the Oklahoma Revised Uniform Arbitration Act (12 Okla. Stat. §1851 et seq.) and the Federal Arbitration Act, this dispute should immediately be submitted to binding arbitration and this litigation stayed in the interim. DATED this _____day of January, 2018. ________________________
  11. @Goody_Ouchless Good call. I found this in a similar case: "Oklahoma Statute title 12, §1856 states: "[A]n application for judicial relief under the Uniform Arbitration Act must be made by application and motion to the court and heard in the manner provided by law or rule of court for making and hearing motions." 12 O.S. Supp. 2005 §1856(A). The Oklahoma Supreme Court in Rogers v. Dell Computer Corp., 2005 OK 51 138 P.3d 826 interpreted this provision as requiring a moving party to comply with Rule 4 of the Oklahoma Rules for District Courts: Under rule 4 of the ORDC (Oklahoma Rules for District Courts), the party seeking to compel arbitration must present a statement of the law and facts showing an enforceable agreement to arbitrate the issues presented by the petition. The application to compel arbitration must be supported by affidavits, pleadings, stipulations, and other evidentiary materials which are verified by a person having knowledge of their accuracy." My only question is: If it has to be "supported by affidavits, pleadings, stipulations, and other evidentiary materials. *verified* by a person having knowledge of their accuracy" do I just add an affidavit from myself to it saying "I had this debt and this is the agreement I had with the OC?" Because, the fact remains that they havent proven their case that this is my debt and I still don't know that it is. I don't want to hurt myself should it come to arbitration. I still want them to prove everything they are supposed to prove. At this point, and as I have learned more about this, their petition is faulty on every single point. I have a million things I could do. If I arbitrate, it sounds more and more like I have to admit the debt is mine in the first place, which sounds like a big no-no, especially since I don't actually know this to be true. But if I understand it correctly, the choices are: 1. Nit pick all the faults in their case and make them produce documentation, which, if pushed far enough they will do, and I will lose. 2. Admit the debt up front, but compel arbitration, and the cost-benefit analysis will cause them to balk at pursuing the case any further. But if it comes to arbitration... then asking for arbitration will have cemented their case against me, right?
  12. So, Legal Aid just got back to me. The lawyer is telling me: 1. Just answer and deny everything because Love, Beal, & Nixon haven't provided anything but an affidavit. 2. Not to attach the contract. 3. But still request arbitration. I am supposed to do this in a layman's way. No Memorandum, handwritten is perfectly fine. No fancy language. She is telling me to literally type out: "I deny all counts of the complaint. I have no knowledge of this debt. Please, have the plaintiff send all of their documentation of this debt to me. Also, I move this court to compel arbitration." signed me. certification of sending it to them signed by me. No notary needed. No memorandum. Nothing more than that. She is an older "good old boy" type of person. I can tell she has been around the block a few times. She has everything on my case and says that I haven't even been assigned a judge yet. Should I take her advice and play the dumb country boy? I mean... she says that discovery could come next, or they could schedule a meeting, or any of a number of things. What would you guys do? @fisthardcheese @Goody_Ouchless @BV80 @Brotherskeeper @Clydesmom Thank you guys for all the help.
  13. Also, if anyone has a sample MTC (Especially for Oklahoma) that would just be the bee's knees. Writing out this Memorandum of Points of Authorities is kind of getting the best of me right now.