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Robby8900 last won the day on July 7

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  1. As of this morning i have not yet found a case. Will still continue to search.
  2. Rule 41(B)(3): Adjudication on the merits; exception. A dismissal under division (B) of this rule and any dismissal not provided for in this rule, except as provided in division (B)(4) of this rule, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies. 12(B) is adjudicated on the merits, 41(B)(4)(a) is ''otherwise than on the merits''. in all of the MTC arbitration motions that i have read on this site state a ''affirmative defense'' of lack of subject matter jurisdiction due to an underlying arbitration clause. That obviously will be adjudicated upon the merits under 12(B). A court has no business weighing the ''merits'' of a claim referable to arbitration. Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___ (2019). So if i demand arbitration, prior to a lawsuit, and the clause state that the parties rights to go to court, are replaced by my election and the JDB files a suit anyway after lawful notice of demand to arbitrate that demand, and section of the arb clause, will be an exhibit in my motion to dismiss under rule 41 for lack of jurisdiction of both, me, and subject matter, as a failure to prosecute otherwise than on the merits.
  3. There is not a dismissal under 41(B)(4)(a) for failure to state a claim. However, there is a section under both rules to dismiss for lack of subject matter jurisdiction.
  4. Lack of subject matter jurisdiction can be challenged at any part of a proceeding. What rule say you cant file a rule 41(B)(4)(a) in lieu of an answer? Ohio Civ.R. 41(B)(4)(a): ''Failure other than on the merits. A dismissal for either of the following reasons shall operate as a failure otherwise than on the merits: (a)lack of jurisdiction over the person or the subject matter;'' Do you think a plaintiff will assert the arbitration clause as a material fact to be adjudicated on the merits in its complaint? if arbitration was demanded prior to a suit being filed, and the clause states electing said clause replaces both parties rights to go to court, then yes, i believe the arb clause is the ''otherwise than on the merits'' under 41(b)(4)(a). In Thomas v. Freeman the court explains the rule 41 really good, though it speaks about non service, but also explains those properly served. THOMAS et al., Appellants, v. FREEMAN, Appellee, Ohio Supreme Court, No.96-2
  5. 41(B)(4)(a) in Ohio is lack of jurisdiction, just as 12(B)(1). If i require arbitration prior to any lawsuits, and the clause states electing arb replace the right of both parties to go before a judge or jury in a court, then using 41(B) would be logical to dismiss for failure other than on the merits as apposed to 12(B)(1) under pleadings (defenses) which is adjudicated on the merits. if they did sue and the judge deny the motion, its simple to file a MTC.
  6. @Clydesmom; Are you an attorney? I said i agreed about the FDCPA. But, if you elect arbitration and it replaces both parties rights to go to court before a judge, why can't you get the case dismissed under rule 41(B)(4)(a) lack of jurisdiction, failure otherwise than on the merits? i know he is in NJ wasn't using Ohio law for NJ. If i am wrong, explain, why i can't compel arbitration and dismiss the case under said rule, and not stay the proceedings, because staying the case will serve no purpose. Post arbitration is not renewed adjudication on the merits but, only a conformation of the award in the common pleas court not the muni court. As far as the carve out for small claims court, if he already demanded arbitration that replaces the plaintiff rights to go before a judge in a court that even includes small claims court. Maybe, there needs be a first case to test this to find out. That's why i said i have already demanded arb, just waiting on a suit to come my way and i will test the 41 rule. in Ohio.
  7. You are correct, and you gave ''Notice'' that you require arbitration to settle any dispute or controversy all of which are called ''claims'' pursuant the written agreement. I don't recall you saying they sued you. However, since you demanded arbitration to settle claims, that replaces both parties right to litigate in court. So if they sue you even in small claims, you can get the case dismissed, for failure other than on the merits. That is my belief, and suggestion as i am not a attorney.
  8. Because no case law states that, does not mean it can not be done. If i demand arbitration in writing then say LVNV sues me 5 months later not only do i have a cause of action under FDCPA for a violation for taking an action that they can't lawfully take, because demanding arb replaces both parties right to go to court via the Credit One arb clause, i have good cause to have the case dismissed for failure other than on the merits. Ohio Civ. R. 41(B)(4)(a) for failure other than on the merits (Lack of Subject matter jurisdiction). Speaking Of Ohio. I don't believe that a plaintiff, will assert the arb clause in its complaint as a material issue. i have already demanded arb with LVNV months ago, i am just waiting for them to sue me so i can pursue this in the manner i just stated. if it fails and is denied, then i would file MTC arb, and stay of proceedings.
  9. I read a lot of post on this website regarding arbitration and have posted and responded to many post. That being said. In Ohio when one is served a complaint the defendant can answer, including affirmative defenses, or may choose to file a motion before pleading affirmative defenses. A MTC arbitration which would include the assertion, lack of subject matter jurisdiction due to an arbitration clause under Ohio civil rules 12(B)(1). But, can we dismiss a complaint for lack of jurisdiction due to an arb clause, without filing an MTC. I, believe, that we might be able to under rule 41(B)(4)(a) for failure otherwise than on the merits. i could be wrong, so i am open to criticism. My thought is instead of filing a MTC maybe we might file a motion to dismiss for lack of jurisdiction for failure otherwise than on the merits due to a arbitration clause. In Thomas v. Freeman the Ohio supreme court explains rule 41 really good. Here is Ohio civil rules so that you can easily go to rule 41 to read it. I believe, to elect arbitration, is just that and simply replaces both parties rights to go before a court, such a Credit One Bank card agreements. I hope that those on here can read between the lines without me having to write a book on here to explain my thoughts. but after reading the Thomas case, it seems to open up a way to dismiss other than on merits. This is information only and not legal advise as i am not an attorney.
  10. ok, just happened to be looking at the civil rules and saw that one.
  11. Rule 12 challenge to the attorney's authority. truth has to come from the mouth of the principle not the agent. Who is is gonna verify what the attorney is saying in the hearing is true. Just a thought.
  12. My friend filed an affidavit into his case, based on a non response to his motion from the plaintiff's attorney Affidavit-1.pdf
  13. My understanding is there must be a arbitration clause in the written agreement. Cap One doesn't have arbitration clause in its card agreements. However, is your card agreement old enough that it does include the arb clause? If not LVNV is taking an action it cant lawfully take. If so, my suggestion would be to motion to dismiss for lack of jurisdiction to render judgment on the merits as no written agreement to arbitrate exist between the parties.
  14. Question, if the plaintiff's attorney fails to respond to the motion to dismiss for failure to prosecute within 14 days, will the plaintiff be barred from opposing the motion after the time has passed, pursuant to Ohio Civ. R. 6(C)(1) which states: ''Responses to a written motion, other than motions for summary judgment, may be served within fourteen days after service of the motion''. The court did set a hearing date to hear the motion. here is a copy of my friends motion. As of today the plaintiff's attorney has not filed a response nor a default judgement. motion to dismiss failure to prosecute.pdf