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. I agree. I brought up most of those points mentioned earlier in my response to their objection of the MTC. I have been waiting for the ruling on the MTC which has not happened yet. In the meantime they have sent request for discovery, filed MSJ, we've done some back and forth on objections for MTC and MSJ. The arb issue they argued wasn't that big of a deal to me. Their latest argument that the court should retain subject matter jurisdiction is what concerned me. I think I should submit a request to make a decision on the MTC, or move on the lazy judge rule here. Thanks
  2. So, since they are hung up on me not starting the filing, just tell them that I would gladly file with AAA if they would pay the filing fee as stated in the arb clause? File online with AAA and send the demand application with my response and ask them to pay the filing fee. That should be enough to leave that issue alone.
  3. @BV80 What are your thoughts on asking Unifund to pay the arbitration fees with this clause? We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator. Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration. In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court. If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request.
  4. I do not understand why the attorney keeps going there about the Arbitration. Unless she's just trying to throw me off and discourage me. These are some of the same points I made in my reply to the MSJ. Now, this is a new argument that they are bringing up for the 1st time, about the court retaining subject matter jurisdiction. I'm trying to read through some of the cases she posted. Are there other locations to find support other than google scholar?
  5. REPLY TO DEFENDANT’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY DEFENDANT DISPOSITION This attorney is not going down without a fight. It appears she is arguing about jurisdiction but not subject matter jurisdiction. She's also holding to me not demanding the arbitration. Do I need to just file with AAA? If so, can I have them pay in order for me to initiate with this clause: We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator @Brotherskeeper @BV80 Response to MSJ opposition.pdf
  6. Thanks. I had to email the response and attorney acknowledged receipt. It seems like I saw something like a document called Notice of Compliance. I haven't been able to get any info regarding the case because of partial court shutdown. But, I just found an email address for the court so hopefully, I'll be able to check on my case now.
  7. I just wanted to say thanks to those who really helped me out with your input. I really appreciated it. @BV80, @Brotherskeeper @fisthardcheese @Harry Seaward Everything has been turned in. Waiting to hear back from the court about ruling on the MTC. I had to handwrite the answers to the requested discovery because the CD with Word version would not open. It seems like I've seen somewhere on these boards about a document you file/serve after submitting the Request for Admissions, Interrogatories, Produce Documents. What is that document called? Is it required? Thanks
  8. @Brotherskeeper Thanks so much. You have been super helpful. If the MTC is granted, does that supersede the MSJ and request for Discovery that was filed just 2 days later? I also found out last night that IN has a lazy judge rule. Found another user on the boards that had some dealings with that. It has been over 30 days and the judge has not made any rulings on anything of mine or Plaintiffs. I called court twice and they said I did not need to schedule a hearing and that judge would just rule. So there's a Trial 53.1 rule where I can file a praecipe, to request Supreme Court to assign a special judge. Either that will motivate the current judge (it's been said he's not consumer friendly from other posters) or assigned to another judge who would hopefully just grant the MTC. I'm looking up samples of those now to possibly file that by tomorrow. Our state is on shutdown, and I have not been out of the house. Unfortunately, I'll need to leave the house to have the Discovery notarized.
  9. I just noticed that lazy judge rule and that next week will be 30 days without a judgement on my MTC. The Plaintiff is trying to be slick, but I will look into invoking the rule. I wonder how that will work since I stated that court lacks subject matter jurisdiction and then it's removed to the Supreme Court.
  10. Thank you @Brotherskeeper. I can see what you're saying. I think my biggest struggle is the MSJ part to argue against the Count 1 of Breach of Contract or whatever is needed to combat the charge of no genuine material fact. (Why would they just put 1 of the counts if there were 4 in the complaint). Looks like they've dropped the other 3, as the affidavit was only for the 1 count. If the arbitration clause is considered the 'material fact', I have not found any case law to back that up and actually since it can't be based on pleadings only, how would I handle this. I considered the Affidavit of Debt could be a problem, just looking at various boards. As I looked at other cases by this attorney, they use same tactic of no genuine material issue. Discovery request filed a day before MSJ. Then Motion to Deem Admitted/MSJ. They sent me a CD with Discovery (Word). I haven't had a computer with a CD for some years. Office Max couldn't even open the CD, so I hope to have some lee-way from the court especially since the state is on stay at home orders.
  11. on the 6th of this month. I'm trying to finish up today, as much as I can.
  12. So, it appears the part about the Arbitration is just their response to the Motion to Compel that they combined in the same document as the MSJ. So, the bigger issue is the fact that they say the general denial is not SUFFICIENT to raise a general issue of material fact. I do not understand how they say in my Answer I failed to deny the allegations stated in the claim, when I gave a general denial and stated: asserts a General Denial: I deny each of the Plaintiff’s allegations in the Complaint. I tried looking for case law regarding arbitration clause being considered genuine issue of material fact, but not so lucky. There is one count listed in the attached Affidavit of Debt, that the statements are based on personal knowledge and review of the business records of Barclays, which were maintained by them in regular course of business, and provided to client. I'm not sure what documents or affidavit I could provide to object (since it can't be based solely on my denial) I also noticed it has been 30 days and no ruling on my MTC (the court said no hearing needed). There is a RCP about moving to Superior Court to have a special judge appointed. Of course with the virus, courts are not fully operating and I can't get anyone on the phone. I appreciate your help. Additionally, I will submit my admissions and interrogatories and object due to pending MTC. (You should be able to see throughout this thread, my Answer, their response/MSJ, and my proposed Objection to MSJ)
  13. Ok. So this is just about the MSJ that they filed. I was thinking it had something to do with my Answer. So should, I include a copy of the AAA rules as an exhibit, as well as the originally submitted card agreement/affidavit?
  14. Ok. I have called the courts twice and asked if I needed to schedule a hearing and they state that it is not needed and the judge will just make a decision. I will call again tomorrow.. I was just wondering if I did something wrong and caused this issue because I didn't include the agreement with my answer. (which I didn't learn until later) Referencing the RCP: Proof of execution of instruments filed with pleadings. When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith. A denial asserting that another person who is not a party did execute the instrument, indorsement, or assignment may be made without such oath or affidavit only if the pleader alleges under oath or in an accompanying affidavit that after the exercise of reasonable diligence he was unable to make such person or his representative (subdivision (H)) a party, the reason therefor, and that he is without information as to such execution. I guess that is my understanding of what they mean by a general denial doesn't work based on pleadings alone (like without an affidavit or such). Which is why I thought I needed to amend the answer. Also, I did not ask for a relief in the Answer. I made a few mistakes.
  15. Great points. Thanks so much. I didn't think their reason of the arbitration was as hard to address as the genuine issue of material fact. But I appreciate these tips.