I would like to submit this today. I have taken out the information that didn't directly match my card agreement. Let me know what you think.
Defendant states the following:
1. On or about June 19 of 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with GE Capitial Bank., and seeks to collect an account stated balance. The documents referred to in the Complaint were not attached as exhibits in complete form.
2. Defendant sent a letter via USPS certified mail to Plaintiff's attorney, on November 10, 2018, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration. True copies of the written election notice and the signed USPS return receipt are attached to the Affidavit of gg2008 filed and served as Exhibit A. Defendant received no response from Plaintiff to her arbitration election notice prior to the filing of this Motion.
3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Agreement , Plaintiff's (Exhibit D, Page 5), pursuant to MCR 2.116(C)(7), and 2.116(D)(2).
4. The parties are bound by the Cardholder Agreement. The Agreement states, "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 Wal-Mart Stores, Inc. if it relates to your account, " This Arbitration Agreement 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 the Card Agreement. (Plaintiffs Exhibit D, page 5 section 2)
5. The Federal Arbitration Act (FAA) 9 USC, §2 provides:
“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 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.”
6. The Supreme Court emphasized in its decision in AT&T Mobility L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.
"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."
Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " Id.
7. The Arbitration Agreement also states in "Enforcement, Finality: 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." (Exhibit D, Page 5)
10. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580. Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established. There is a written arbitration clause that is part of a valid written contract. The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "Enforcement" section. (Plaintiff's Exhibit D Page 5)
11. The attorney for Plaintiff was contacted for concurrence with the relief sought in this Motion. A copy of the Proposed Order that accompanies this Motion was served by certified mail on November 10, 2018, and by USPS first class mail. Defendant received no response from Plaintiff. True copies of the transmission record are attached to the Affidavit of gg208 l filed and served as Exhibit B.
WHEREFORE, for the foregoing reasons, Defendant respectfully requests that this Honorable Court grant this Motion to compel Plaintiff to arbitrate all of its claims alleged in the Complaint per the terms of the Arbitration Agreement and dismiss this action. In the alternative, the Court should order that this action be stayed pending completion of private contractual arbitration in JAMS.