cedric_86

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cedric_86 last won the day on April 13

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About cedric_86

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  1. @fisthardcheese @Brotherskeeper @BV80 I want to thank you all again. You have been kind and patient with me. I got down to the wire, but I got it in there. I had a eye doctor appointment and took my laptop to finish it up and get it uploaded by the deadline. I was in the chair with my eyes dialated trying to see enough to hit submit. I got it in with 1 min. to spare. LOL It's a good thing this isn't a paper due for college, because with all the copying/pasting, I would definitely be thrown out for plagerism. LOL So, I thank you all for your words, explanations, and research that made it into this motion.
  2. I saw your suggestion in time to make the changes. I just realized 2 things. I didn't attach the Card Agreement when I efiled this. I guess I figured, they already had it. I added the changes to the motion, but realized it was a different card agreement and the pages are different. The one submitted with the MTC covered periods thru 2017, which about when the default occured. The other card agreement I downloaded from Barclay's site ending in 2019, so the page numbers are off. I'm thinking I could just go and add the attachment, but I don't want to change the document. So, does it matter which agreement I submit as the attachment to the motion? @Brotherskeeper @BV80 can either suggest how I can remedy this mistake? Would I need to submit the card agreement (which one)? Do I need to submit the AAA rules since I reference it, although they were submitted before?
  3. Hey guys, After much toil I have finally finished my Motion to Correct Error (Ind. TR 59). I was not sure this was the proper code to use of Ind. TR 60 because there is a final judgement. I would be grateful for any and all who can look over, make suggestions, or give feedback, As you can tell, I do not know what I am doing. LOL. Today is the deadline, so I will file shortly. Thanks to all for all of your help thus far. @BV80 @Brotherskeeper @fisthardcheese Motion to Correct Error-redacted.pdf
  4. Thanks. They did not sue in small claims court (which is under 6K in Indiana - the debt was only 2k), but they sued in district court.
  5. Still digging: Indiana State Law The arbitration procedural framework under Indiana law is established by statute and not common law (see Natare Corp. v. D.S.I., Duraplastec Sys., Inc., 855 N.E.2d 985, 986 (Ind. 2006)). Indiana’s arbitration law is codified in the Arbitration and Alternative Dispute Resolution statute, which includes: The Opt-In Arbitration Statute, codified in Chapter 1 of the Arbitration and Alternative Dispute Resolution statute (Ind. Code §§ 34-57-1-1 to 34-57-1-26), which governs arbitration where parties without an arbitration agreement agree to arbitrate a dispute that is otherwise subject to court litigation. The Indiana Uniform Arbitration Act (IUAA), codified in Chapter 2 of the Arbitration and Alternative Dispute Resolution statute (Ind. Code §§ 34-57-2-1 to 34-57-2-19), which sets out specific rules for court applications by arbitral parties, including applications to compel or stay arbitration. The IUAA reflects Indiana’s strong public policy favoring arbitration (see Welty Bldg. Co. v. Indy Fedreau Co., LLC, 985 N.E.2d 792, 798 (Ind. Ct. App. 2013); Marion Cmty. Sch. Corp. v. Marion Teachers a$$’n, 873 N.E.2d 605, 608 (Ind. Ct. App. 2007)). Unless an agreement provides otherwise, the IUAA applies to all arbitration agreements, including arbitration agreements between employers and employees or their respective representatives (Ind. Code § 34-57-2-1(a)). It does not apply to: Consumer leases. Sales and loan contracts. (Ind. Code § 34-57-2-1(b).) The IUAA is based on the Uniform Arbitration Act (UAA), which the National Conference of Commissioners on Uniform State Laws revised in 2000 when it promulgated the Revised Uniform Arbitration Act (RUAA). To date, the Indiana legislature has not introduced legislation to adopt the RUAA. For more information on the RUAA and a list of states that have adopted it, see Practice Note, Revised Uniform Arbitration Act: Overview (W-004-5167). Because the IUAA governs most arbitrations in Indiana, this Note does not discuss the Opt-In Arbitration Statute in detail INTERSECTION OF THE FAA AND INDIANA LAW The FAA preempts conflicting state law only “to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 476-77 (1989) (there is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy behind the FAA is simply to ensure that arbitration agreements are enforceable)). The FAA governs arbitration agreements and awards in contracts involving interstate commerce, and the IUAA governs Indiana arbitration matters that are not preempted by the FAA (see LaSalle Grp., Inc. v. Electromation of Del. Cty., Inc., 880 N.E.2d 330, 331 (Ind. Ct. App. 2008)). Under Indiana law, the parties to a contract can agree to use the FAA to interpret their contract if the contract implicates interstate commerce (see MPACT Const. Grp., 802 N.E.2d at 904; Earley v. Edward Jones & Co., LP, 105 N.E.3d 1094, 1100 (Ind. Ct. App. 2018)). If the arbitration clause is silent regarding choice of law, the FAA applies to the arbitration agreement even if the contract contains a choice of law provision specifying that Indiana law governs that contract. Therefore, if the parties want Indiana law to govern their arbitration agreement, they must expressly state so in the contract’s arbitration clause (see Hall St. Assocs., 552 U.S. at 590; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 60 (1995)). Although the FAA’s substantive provisions may apply regardless of whether a party seeks enforcement of the arbitration agreement in state or federal court, the FAA does not preempt Indiana contract law and cannons of contract interpretation in determining whether the parties agreed to arbitrate any dispute (see MPACT Const. Grp., 802 N.E.2d at 906). @BV80 @Brotherskeeper @fisthardcheese
  6. Right. I'm just trying to figure out what point that I could use to file the Motion to Correct Error (TR 59). I followed the MTC template and added: "Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (|nd.Ct.App.2005), trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind. Ct. App. 2010). Looking at the case law in MTC, and arb clause, I don't see how the judge ruled with the reasoning that they filed suit in court. So with the same caselaw from the MTC template, he still ruled the way he did. I need to find caselaw that shows both parties don't need to agree to arbitrate, or something that deems the motion to correct error necessary. I have to find something to show judge made an error in his ruling. and I would need to file it by Monday.
  7. But, with the plaintiff suing in court, that action shows them waiving arbitration. That's all I could think of for his denial to include because the plaintiff chose to sue in state court.
  8. I'm thinking this is where/why the judge ruled based off of them filing in state court: Under Indiana law, a party may waive its right to arbitrate a dispute that is otherwise arbitrable under a valid arbitration agreement. Even if a party does not waive arbitration in express terms, the court may find the party impliedly waived its right to arbitrate because of the party’s actions. (See Safety Nat. Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1004 (Ind. Ct. App. 2005).) To find waiver, the court must find the party acted inconsistently with its right to arbitrate by engaging in court litigation (see MPACT Const. Grp., 802 N.E.2d at 910). The factors the court considers include: The timing of the arbitration request. The filing of any dispositive motions. Whether the party seeking to arbitrate is unfairly manipulating the judicial system by attempting to obtain a second bite at the apple due to an unfavorable ruling in another forum (See Finlay Props., Inc. v. Hoosier Contracting, LLC, 802 N.E.2d 453, 455 (Ind. Ct. App. 2003).) ********************************** This case dealt with whether there was an agreement to arbitrate: https://www.courtlistener.com/opinion/852946/mpact-const-group-llc-v-superior-concrete-constructors-inc/ @Brotherskeeper @fisthardcheese @BV80
  9. I also found this, which doesn't look to help my case: Indiana courts resolve every doubt in favor of arbitration (see Nightingale Home Healthcare, Inc. v. Helmuth, 15 N.E.3d 1080, 1085 (Ind. Ct. App. 2014)). However, the court may not compel arbitration by a party that did not agree to arbitrate the dispute (see Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 416 (Ind. Ct. App. 2004)). But also found this: Under the IUAA, if a party starts or threatens arbitration against another party, the party resisting arbitration can file a motion on ten days’ notice asking the court to stay the arbitration (Ind. Code §§ 34-57-2-16 and 34-57-2-3(b)). The court must stay arbitration of the dispute if the court finds: The party resisting arbitration did not agree to arbitration. The dispute falls outside the scope of the parties’ arbitration agreement. Non-arbitrable issues between the parties are so inseparable from the arbitrable issues that the arbitrators’ findings are likely to have collateral estoppel effect in the trial of the non-arbitrable issues. Plaintiff did not file to stay the arbitration, but since they filed in court that shows they resisted arbitration. @fisthardcheese @BV80 @Brotherskeeper
  10. Deadline has passed to file for motion to reconsider. I can file motion to correct error. I think that may buy me some time to see if I can do the appeal myself. This is one of the docs I used for guidance when doing the MTC: https://kkclegal.com/uploads/documents/Compelling-and-Staying-Arbitration-in-Indiana.pdf The part that maybe I missed is the burden of proving: "That the disputed matter is the type of claim the parties agreed to arbitrate" I did the general denial and didn't point anything out specifically. However, they have the burden of proving: Is invalid. Does not apply to the parties’ dispute. In their response to the MTC they stated that I had the right, and never mentioned anything about it not being valid. Is this part of the arb clause what the judge could be using to come up with his ruling? If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial. Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action. I'm looking on googlescholar, but don't know exactly what to search for. Am I to search for denials based on state court filings? @BV80 @Brotherskeeper @fisthardcheese
  11. @WhoCares1000 I'm dealing with something similar, where my MTC (for Unifund) was denied, but their MSJ was granted (the same day). Are you saying that this is called an interlocutory appeal? This isn't a final judgement? I'm kind of scared to do appeal myself as well.
  12. This looks like a stamp that was used, which is weird. To have a stamp made to say this appears to mean this reason is used often.
  13. Gotcha. Thanks for the insight. I just didn't know what the next steps where? If it was contacting the 3B or the creditors. I'm working on building my credit but at same time, I have another post on here regarding being sued by Unifund, where my MTC was denied. I'm trying to keep credit together as much as possible.
  14. @BV80 This is really good. I think these are the arguments I used in my MTC or reply to their response. He denied the MTC because plaintiff wanted to sue in court. That doesn't make sense. Then why have the arb clause? It's been said that Indiana is not consumer friendly. This judge already has a bad history. I'm slightly dumbfounded. I cannot to have a judgement on my account as we're trying to apply for a mortgage.
  15. I just found this and this is good information. Once you find violations, such as 2 Bureaus have one thing, and the 3rd has something different, what are the next steps. Is this used as leverage for them to correct it, or remove from your credit report? What are your next steps?