arbitration or chapter 7

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  1. Thank you @Brotherskeeper! I am going to read/review this all tonight and begin to write my reply to their request to deny my motion. I will post my reply when completed. So interesting that they are comparing my 1 month arbitration timeline to the case they cited which was 2 years!
  2. Received in the mail today the PRA attorney's reply to my MTCA asking for its denial. Attached is their response to the MTCA. Bottom line is they are claiming I cannot elect arbitration because I waited too long and have still not filed and that I have elected litigation in District Court rather than arbitration. Also mentions that I caused Plaintiff prejudice because of failure to timely file arbitration. Our MTCA hearing is October 22nd which is the earliest date the clerk had to hear this motion when I filed it. arbitration response.pdf
  3. @Goody_Ouchless thank you for the post. The verbiage used on the order was "this case is dismissed based on the settlement agreement of the parties"
  4. Thank you @Brotherskeeper! I wasn't quite clear as to if a pretrial is considered the start of trial . By the name alone I assumed I was still in good shape with the arbitration but appreciate the response. I will update this thread on 10/17 .
  5. @Brotherskeeper I haven't updated this thread but a new development has occurred in my case. I filed the MTC after 8 days of not hearing back from the Plaintiff in regards to my notice of arbitration, unfortunately the pretrial hearing was already scheduled and I could not get a MTC hearing date before that pre trial hearing. So on 10/17 is the pretrial and on 10/22 the MTC hearing is scheduled. My concern is the arbitration is good unless a trial has started or a judgement has been ordered...so in Michigan the question is does the "pretrial" hearing count as part of the trial and if so I am thinking I should go ahead and file the arb online before the pretrial date of 10/17 to show the court I went ahead and initiated arb. Any experience with this issue?
  6. Yesterday I had my MTC hearing and wanted to report back the results to share the result and close out this thread. I arrived at the courthouse 30 minutes prior to the hearing to go over all my notes and mentally prepare, was admittedly nervous but this is what I signed up for so was ready to walk out of there with my arbitration order. The courtroom was locked so plaintiffs and defendants began filling the hallway while waiting to enter the courtroom, the bailiff came out and started checking people in by asking their name and if they had talked to the other party yet. It seems the process is have the two parties talk in the hallway prior to entering the courtroom to see if you can come to some kind of agreement before your time in front of the judge. Cavalry did not show up early so I entered the courtroom thinking what if they don’t show and what to do next. About 15 minutes into listening to other motions being heard and defended, the Cavalry attorney walked in. The bailiff went over to her and then pointed in my direction so we went to the hallway to talk. The Cavalry attorney was very professional and cordial. She pulled out my file from several files in her folder and the first comment was why arbitration and proceeded to say she has never heard of the consumer asking for arbitration as it is expensive and once judgement is ordered you only have 21 days to pay the full amount, I corrected her and told her I believe it is 28 days from judgement. I will say I have been a headhunter for 20 years and after interviewing thousands of people through those years I can figure out when someone is genuine or not and this cavalry attorney genuinely believed a consumer asking for arbitration was crazy, obviously they are programmed to have that belief. She said she had a settlement offer of 85% of the balance due which would avoid any more court time or arbitration. I told her that I was very familiar with the process from my research (I so wanted to brag about this site with incredibly helpful/posters but held back, lol) and was comfortable following through to arbitration and told her we should probably get back in to the courtroom before the judge calls our case. She said ok and that she was going to call her client and let them know that I wanted to continue with arbitration. I went back into the court a bit bummed that she didn’t offer a dismissal with prejudice offer like in BitsyMI or Want2beclears case but I knew my dollar amount (over $9000) was 4 times their amounts so they would not fold easily. About 5 minutes later she came back into the courtoom and asked me to come back to the hallway. She told me she talked to her client and had a final settlement offer of 50% of balance due and that can be paid in a monthly payment plan with whatever amount I feel I can handle, she threw $25/month out there. No judgement, case dismissed without prejudice at a settlement offer of 50% balance due to be paid monthly and no interest accruing on the balance…obviously they can reopen the case down the road as it was without prejudice. Going into this I had a dollar amount that I felt if they offered I may take and that number was $4200. I got this number from figuring arbitration costs would run them around 5K so they could still walk away with 4200 after the arb costs if it went all the way through. The other concern I had going into this was 2 or 3 weeks back there was a post from someone that filed arb vs Cavalry and was denied because AAA said they would not work with Cavalry anymore. So my concern was if the judge does not order arbitration and AAA won’t accept my case (JAMS was not listed as an option in my agreement) then I would have no leverage and could be on the hook for close to the full amount. I also have a case with Portfolio going on right now (will post an update on that thread) so the thought of having multiple cases going at the same time while trying to make a living was a bit overwhelming. So I ended up taking the deal. We went back to the court room and waited for the judge to call us up, she asked if we were able to come to an agreement and we both said yes told her what is was and she directed the Cavalry attorney to write up the Order and she would sign it, she did and we went our separate ways. Looking back a couple things I would have done different. First I should have attended a motion hearing as an observer just to see how it works and what happens and to get comfortable in that surrounding. I think that would have calmed my nerves a bit. There were at least 8 cases being heard at the same time as mine so being a new situation I have never been in, representing myself in front of a judge and at the same time trying to negotiate a deal the nerves did play a part in my accepting a settlement instead of getting the ultimate victory of a dismissal with prejudice. Anyone that is entering into this process should look up the daily docket at their court and look for Motion cases involving Cavalry, Portfolio or Midland and then go observe those hearings as it will give you a better feel and understanding for what to expect at your hearing thus giving you more confidence. Second, I would not have a walk away number in my head as that fallback option opens the door mentally to giving up on the ultimate outcome which in these cases is the dismissal with prejudice, 0 dollars paid. Overall I am comfortable with the outcome, it is a better situation than it was going into this. I am incredibly thankful for this site and especially @Brotherskeeper for all his time. As I said I do have the Portfolio case going on right now as well and will continue to update that thread with updates.
  7. @Brotherskeeper I was able to file the motion and chose a hearing date of 10/8/19. I did not have to provide a "judges copy" which I think was the case with BitsyMI and Want2beclear as well.
  8. Thank you @BrotherskeeperI thought the same after researching the procedures...I will file the MTCA and Affidavit (with signed Certified Mail Receipt, Notice of Arbitration Election/Proposed Election as Exhibit A) but assume I may not be given a court date since the pre trial date is already set so in that case I would not fill out the Notice of Hearing (if a court date is not assigned when I file the MTCA). I will only file the Notice of Hearing if a new court date is assigned to the filing of the MTCA otherwise I will expect the MTCA to be discussed at the pre trial date of October 10.
  9. @BrotherskeeperI have not received any correspondence from the attorney and the 7 day clock has expired since they signed for the Notice of Arbitration I sent them, so I am going to file the MTCA, Affidavit and Notice of Hearing today. I just checked the court case online and noticed there is a pre-trial hearing set for October 10th. My question is how does this effect my MTCA? I assume I should still file the Motion?
  10. @Brotherskeeperthank you I did have #8 correct in my non-private version. I did notice after fixing the italic errors that in #7 I was missing pages 10-11) at the end of the paragraph. A question about that, I have it as (Pl.'s Ex., pp 10-11), in your opinion is the abbreviation of Plaintiff used correctly there?
  11. Thank you @Brotherskeeper for the hawk eye! I have been cutting and pasting from the different Michigan threads then auto correct tries to do it's job and this is what happens! All your time and suggestions/opinions are appreciated more than words can say. I will make the changes.
  12. @BrotherskeeperI have prepared my MTCA to file on Wednesday, Sept 18 assuming I do not hear back from Plaintiff’s attorney. I have the following items ready to submit: MTCA (copy is attached) – concerned about the language I used to describe the “Card Agreement” in paragraph 1 and 2 Affidavit (copy is attached) Notice of Hearing (copy attached) Attached to the Affidavit will be copies of the Proposed Order, Notice of Arbitration Election and a copy of the CMRRR dated September 11, 2019 that I sent to Plaintiff’s attorney labeled as Exhibit A. I will have this Affidavit notarized before submitting to court I will fill out the Notice of Hearing once I get that information from the Court clerk and mail a copy to the Plaintiff’s attorney. I will also have a copy of everything above in case a “Judge’s copy” is needed I am using your very thorough and appreciated description from Want2beclear’s case: After you get the the MTCA hearing date and time scheduled with the clerk, you will fill in that info on the Notice of Motion and Hearing, including the certificate of service to Plaintiff. (The court requires you to serve Plaintiff copies of everything you file with it, and swear that you did so.) The original Notice of Motion and Hearing that you file with the court clerk will have attachments: 1.) actual Motion to compel arbitration with your "wet ink" signature, 2.) original "wet ink" signed/notarized Affidavit of Want2bclear, 3.) "Exhibit A" documents, including a color photocopy of the CMRRR signed receipt, and 4.) the signed certificate of service (which may in your case be at the bottom of the Notice/Hearing form). Photocopies of the above items (the Notice of Motion and Hearing with all attachments) will be mailed to the Plaintiff on the date and by the method sworn to on the certificate of service. If the judge requires his/her own copy, then photocopies of everthing filed with the court go to the judge, marked "judge's copy" on it. Another set of photocopies of everything filed with the court and stamped by clerk and/or sent to the Plaintiff are for your files. I would make a photocopy of the addressed, stamped envelope that you mail the Plaintiff's copy in. MTCA final to post.docx AFFIDAVIT cavalry final.docx notice of hearing.pdf
  13. Notice of Arbitration and Proposed Order mailed (Certified/Return Receipt) to Plaintiff on Monday and signed for today so now I start the 7 day countdown to filing the MTCA
  14. These results are so encouraging, thank you @Want2beclearfor all your posts!
  15. I am filing my answers/affirmative defense, notice of arbitration election and proposed order on Monday. I have used the same template I am using in my other case (Cavalry lawsuit) but wording in the Portfolio Complaint was different. I feel like I am getting the hang of this with the invaluable information found on this forum but thanks in advance for any suggestions anyone might have with the attached docs. Portfolio Answers and affirmative defense.docx Portfolio notice of arb.docx PORTFOLIO Proposed Order COURT.docx
  16. Below is the Complaint and Arb agreement. Plaintiff's Exhibit A is the bill of sale from Citibank, Exhibit B are statements, and cardmember agreement The Complaint does not list Breach of Contract which I thought was the standard? Sep 9, Doc 2 (1) (1).pdf Sep 9, Doc 1 (1).pdf Sep 9, Doc 3 (1).pdf
  17. 2nd of my current cases so I thought I would start a new thread to keep them separate. 1. Who is the named plaintiff in the suit? Portfolio 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weltman, Weinberg & Reis 3. How much are you being sued for? $7500 4. Who is the original creditor? (if not the Plaintiff) CitiBank 5. How do you know you are being sued? (You were served, right?) Served 8/26 6. How were you served? (Mail, In person, Notice on door) in person 7. Was the service legal as required by your state? Yes. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Oakland County, Michigan 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2/2018. 11. When did you open the account (looking to establish what card agreement may be applicable)? 12/2007. 12. What is the SOL on the debt? 6 years. 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). They served me have 21 days to answer 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No 16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? See attached below 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. – Statements, cardholder agreement, JDB Bill of Sale and Assignment, 18. How did you find out about this site? originally google
  18. Thank you @BrotherskeeperI think I may be getting confused by jumping between BitsyMI and Want2beclear threads, I need to do a better job separating the two . I was going to follow what BitsyMI did in her case so the above MTCA is going to be included as a courtesy/convenience for the Plaintiff when I send the Notice of Arbitration so it has not yet been rejected and not an official Motion filed with the Court. In that case I would not have to do the affidavit until I officially file the MTC with the Court? I believe she included a copy of the Proposed Order for her motion to compel arbitration along with this arb election notice. Her notice had a sentence at the bottom about the Proposed Order being included for their convenience, or something to that effect. The signed receipt of the elcetion notice started the 7-day clock for the rejection/acceptance of the Proposed Order, according to the Michigan Court Rules. After 7 days with no response, the order is deemed rejected. When you do the motion to compel, you're required to include an affidavit with a copy of the Proposed Order attesting that you first sought Plaintiff's concurrence before filing the motion, which was rejected. Check Bitsy's thread for this info. I think I need to take a breath and keep it simple, I will file the below docs on Monday and then file the MTC with affidavit and hearing date and time when the 7 day clock expires. Any suggestions on the below docs are appreciated. Thank you so much again for your time and posts. Answer and Affirmative defense.docx Proposed Order.docx Notice of Arbitration Election final.docx
  19. @Brotherskeeperthat does answer the question, thank you. Could you take a look at the MTCA below? I wasn't sure if I should add a section with the Survival and Severability of Terms legalese when referencing the Agreement arbitration section. The Survival terms outline that the arbitration agreement survives "any sale of your Account, or amounts owed on your Account, to another person or entity." MTCA final.docx
  20. @Brotherskeeperthank you I will review her posts again. Want2beclear included a cover sheet marked Exhibit A in his notice of arbitration, in your opinion should I also include that?
  21. Thank you @Brotherskeeper. I am attaching the rough draft notice of arbitration, I feel like the more legalese the better so in your opinion should I add more of the arbitration wording to this notice? Notice of Arbitration Election to post.docx
  22. In my Notice of Arbitration Election that I send to the Plantiff's attorney do I just include the following paragraph from the Card Agreement Arbitration Section? "Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgement entered.Neither you nor we waive the right to arbitrate by filing or servicing a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to AAA."
  23. @BackFromTheDebt Thank you for the information regarding Midland...I had no idea that may be an option with that lawsuit. I have included below my answer but still need to put together the MTCA and notice of arbitration election. I have put together my answer by looking at both Want2beclear and BitsyMI posts as they all seem similar but my head is spinning from going back and forth to the various documents and comparing...I don't expect my first draft to be perfect but any suggestions would be appreciated. Answer to post.docx
  24. I just hit the trifecta of lawsuits as I am being sued by Cavalry (served 8/19), Portfolio (served 8/26) and Midland (yet to be served). ..if only they were horses in the Derby! I have read and re-read both the BitsyMI and Want2beclear topic posts and appreciate the opinions and advice from all the members on this site, an incredible source of information. I do have Chapter 7 bankruptcy as an option but I have decided to pursue the arbitration routes first. The amounts I am being sued for are much higher than BitsyMI and Want2beclear so I assume if arbitration is awarded that the JDB will follow the cases through. The arbitration clause doesn't seem as consumer friendly as in the other cases I have read? Below is the first lawsuit which has been brought by Cavalry and I was served on 8/19 with 21 days to answer so must answer by September 9th. 1. Who is the named plaintiff in the suit? Cavalry 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weber & Olcese (same firm as BitsyMI and Want2beclear) 3. How much are you being sued for? $9200 4. Who is the original creditor? (if not the Plaintiff) CitiBank 5. How do you know you are being sued? (You were served, right?) Served 8/19 6. How were you served? (Mail, In person, Notice on door) in person 7. Was the service legal as required by your state? Yes. 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Oakland County, Michigan 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 3/2018. 11. When did you open the account (looking to establish what card agreement may be applicable)? 4/2014. 12. What is the SOL on the debt? 6 years. 13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). They served me have 21 days to answer 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. 15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No 16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? See attached below 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. – Statements, cardholder agreement, JDB Bill of Sale and Assignment, 18. How did you find out about this site? Google My arbitration agreement is below, wording is different than BitsyMI and Want2beclear, also no JAMS option only AAA I am preparing my answer now and will post when finished. Thank you in advance for reading this post and your thoughts on the arbitration wording. complaint.pdf Breach of contract.pdf arb 1.pdf arb 2.pdf