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madaboutu45

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Posts posted by madaboutu45

  1. On 9/9/2021 at 6:28 PM, HueyPilot said:

    My suggestion would be to Memo the Judge and copy to the Plaintiff through his lawyer.

    I've drafted up a technical Memo with some caselaw subject to editing and personal preference. 

     

    Defendants Name                                                                                                 Case Number

    To:  Judges Name  Court Name etc

    Re: MSJ Motions Pending Arbitration ruling.

     

     

    Memorandum

     

    Memorandum regarding Plaintiffs Motion for Summary Judgment Pending Motion for Compelling Private Contractual arbitration as per Card Agreement.

     

    For reasons stated herin, the Court should strike Plaintiffs Motion for Summary Judgment rendering it null and void and have no effect on defendants pending application to confirm private contractual arbitration per incorporated agreement attached to motion to compel arbitration and deny plaintiffs motion for summary judgment as moot. A genuine dispute as to material facts exist regarding a number of Issues unresolved. Defendant has not been allowed discovery. 

     

    NC Civil Procedure § 1-569.7 (f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

     

    An application has been made to stay action in this Court. Action is pending continuance. Petition and Motion for Private Contractual Arbitration is in continuance for determination on <enter date> Answer to Plaintiffs summons and complaint has been filed no further action initiated. The petition for private contractual arbitration includes a copy of the card agreement incorporated in the submitted motion documents directing disputes be settled by private arbitration. 

     

    Answers and summary judgment motions are matters that relate to civil actions, not motions pertaining to arbitration proceedings. See Fed. R. Civ. P. 7(a) and 56. A party does not file Case 3:04-cv-02370-L Document 33 Filed 04/30/07 Page 4 of 14 PageID 228 therefore, has no applicability to a proceeding relating to arbitration.

     

    Plaintiffs’ motion should not apply to a proceeding relating to arbitration for two reasons:

    (1) a proceeding relating to arbitration cannot be brought as a complaint to commence a civil action under the FAA; and (2) Rule 81 restricts the applicability of the Federal Rules of Civil Procedure in arbitration matters. S&B Br. at 3-4 (citing 9 U.S.C. § 6; Fed. R. Civ. P. 81(a)(3)).1

     

    Rule 41 pertains to voluntary dismissal of actions and provides as follows:

    an action may be dismissed by the plaintiff without order of court (i) by filing a

    notice of dismissal at any time before service by the adverse party of an answer or

    of a motion for summary judgment, whichever first occurs, or (ii) by filing a

    stipulation of dismissal signed by all parties who have appeared in the action.

     

     

    FAA’s goal of promoting the expeditious resolution of disputes, the enforcement of private arbitration agreements, rather than speed, is the dominant goal of the FAA that must be given priority by courts. See Guidotti, 716 F.3d at 773 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 219-21 (1983)). Normally, therefore, issues at the gateway to arbitration, such as the existence of an arbitration agreement, must be addressed according to judicial rather than arbitral practice.

     

    When it is apparent on the face of the complaint and the defendants motion documents incorporated therein that the parties agreed to arbitrate, the court should apply the FRCP 12(b)(6) standard for a motion to dismiss for failure to state a claim, without any opportunity for discovery.

    Yours truly

     

     

    /S/ Signature

    Your name

     

     

    MSJ Motions Pending Arbitration ruling..txtUnavailable

    MSJ Motion Pending Arbitration.doc 27 kB · 1 download

    Thank you i will review a follow up this will be sent along with the response or is this is all that is needed 

  2. On 9/7/2021 at 5:07 PM, HueyPilot said:

    There exists a little bit of a conundrum with this motion. 

    You definitely do not want to file action with any motion or response that initiates the law suit pending arbitration. With approval of your MTC the trial court will be the wrong venue for submittal of plaintiffs Motion for summary judgement. 

    nor 

    do you want to ignore this pending MSJ suspense date. (Might be 20 days be careful)

    At present you have an October continuance pending review of your Motion to Compel Arbitration. 

    I would call the court clerk and determine if there is any action to date on your Motion to Compel Arbitration. If approved you can respond to the MSJ accordingly. 

    You need to notice both the plaintiffs counsel and the court with a response to his motion that this is pending Arbitration and will be the wrong venue. I have seen a template on this forum that will be helpful. Maybe others will chime in on how to respond.  Please check your NC Rules of Procedure for motions pending arbitration.

    Ok thanks I do not want to ignore this i don't want a judgement.  I read that i need to have response in at least two days before MSJ court date. So it is best if i respond to MSJ  by stating that I have a pending MTC with Oct date.  I called the court they stated that the  court date is still set for Oct. I received a letter reminding me of court date and it stated this court date is to settle  or arbitration 

  3. In the process of being sued by MCM  I’ve already submitted the MTC had court and the judge continued  the MTC  to October  then I received motion for summary judgment dated the same day we went to court i have until the 16th to respond

    how should I handle this? what documents do I need? should I go ahead and complete the AAA form for a private arbitration or wait until court date for the MTC to do anything 

     

    In the process of being sued by MCM  I’ve already submitted the MTC had court and the judge continued  the MTC  to October  then I received motion for summary judgment dated the same day we went to court i have until the 16th to respond

    how should I handle this? what documents do I need? should I go ahead and complete the AAA form for a private arbitration or wait until court date for the MTC to do anything 

     

    1. Who is the named plaintiff in the suit? ----MCM

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) -----Smith Debnam

    3. How much are you being sued for?------- Around 3,000

    4. Who is the original creditor? (if not the Plaintiff) -----Citibank NA The Home Depot

    5. How do you know you are being sued? (You were served, right?)----- served

    6. How were you served? (Mail, In person, Notice on door)----in person

    7. Was the service legal as required by your state?----- yes

    Process Service Requirements by State - Summons Complaint

    8. What was your correspondence (if any) with the people suing you before you think you were being sued?------ None I never go a letter before I have never herd of MCM

    9. What state and county do you live in? ------NC Cabarrus

    10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)------ not sure per MCM info. 2019

    11. When did you open the account (looking to establish what card agreement may be applicable)? ------2018 I think so

    12. What is the SOL on the debt? To find out: -----3 years

    Statute of Limitations on Debts

    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). ----responded to answer, then they sent Interrogatories, request for documents -----I responded to those with “objection- arbitration has been elected, and a jurisdictional motion is before the court. The scope o discovery is t be determined by the arbitration forum”  I filed the MTC private arbitration per contract that was continued until next month, ---then rec’d MSJ court with a court date of next two weeks or so.

    14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

    -----I have, although the OC never showed up on report, MCM was removed off of one report but showing on the other two this happen last month

    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 did not before suit but after suit started MCM was removed with and investigation letter sent to credit reporting companies

    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?-

    ------ I had 30 days I responded with answer already I did rec’d interrogatory

    Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

    17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

    -----Affidavit-exhibit B (This is by a person that works for them) , statements, card agreement-exhibit A, Fact sheet, bill of sale assignment-exhibit A, affidavit of sale of account, certificate of conformity

    18.  How did you find out about this site? ----------Web search

     

    BB5FB8DA-9DDE-4BC7-87EB-996C945F275A.thumb.jpeg.060fdadc2501bc7d55fc772b937bfca4.jpeg

    497C7267-B977-422E-900D-FA1C87257790.jpeg

    1F58941F-C8DB-4D05-A302-BAAB94AF1962.jpeg

     

  4. Thanks 

    attached is the MSJ and consent for judgment

    as far as the discovery when i filed the MTC my response was “objection-Arbitration has been elected and a jurisdictional motion is before the court the scope if discovery is to be determined by the the arbitration forum “

     

    MCM did attach the bill of sale and admission request for documents and interrogatories againBB5FB8DA-9DDE-4BC7-87EB-996C945F275A.thumb.jpeg.060fdadc2501bc7d55fc772b937bfca4.jpegBB5FB8DA-9DDE-4BC7-87EB-996C945F275A.thumb.jpeg.060fdadc2501bc7d55fc772b937bfca4.jpegBB5FB8DA-9DDE-4BC7-87EB-996C945F275A.thumb.jpeg.060fdadc2501bc7d55fc772b937bfca4.jpeg

     

    497C7267-B977-422E-900D-FA1C87257790.jpeg

    1F58941F-C8DB-4D05-A302-BAAB94AF1962.jpeg

  5. I’m re-posting my earlier post here I might’ve posted in the wrong forum but still in the process of being sued by MCM I have submitted the MTC we had a court date a few days ago and it was continue until next month by Friday i had  a motion for summary judgment in the my mail and I have a few days before court for that to respond

    so I’m really unsure of what to do now

    what should be my next steps

    what do I need to file with the court should I go ahead and file the file with AAA or wait until my court date in next month for the MTC 

  6. In the process of being sued by MCM  I’ve already submitted the MTC had court and the judge continued  the MTC  to October  then I received motion for summary judgment dated the same day we went to court i have until the 16th to respond

    how should I handle this? what documents do I need? should I go ahead and complete the AAA form for a private arbitration or wait until court date for the MTC to do anything 

  7. 7 hours ago, nobk4me said:

    You need to object to all of them.  Like this: OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    Copy and paste that into every one of their discovery requests.  The reason for this is, participating in discovery may waive your arbitration rights by going too far in litigation.  And you can't just ignore them, either.   Admissions not answered are deemed admitted.

     

    Ok here is what i have  for Interrogatories and request for Doc's

    I. Responses

    Defendant(s) responses the Interrogatories as follows:

    1. State your full correct name and any other name or nickname by which you have ever been known.

    Defendant’s Response to Plaintiff’s Interrogatory #1

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    2. State your present, completeresidential addressand business address.

    Defendant’s Response to Plaintiff’s Interrogatory #2

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    3. State the name, nature, duration and place of each employment or occupation which you have had during the five years prior to this date

    Defendant’s Response to Plaintiff’s Interrogatory #3

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    4. State each trade name or assumed name under which you have done business within the past five years and the complete address of each place where business was conducted.

    Defendant’s Response to Plaintiff’s Interrogatory #4

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    5. State the full name and present address of each person with whom you have engaged in any partnership or business venture in the past five years.

    Defendant’s Response to Plaintiff’s Interrogatory #5

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    6. If you assert that the claim herein sued upon is the obligation of anyone other than yourself, then state the name and present address of each such other person or entity, along with all the facts upon which you rely in support of such position, including your relationship to such other person or entity.

    Defendant’s Response to Plaintiff’s Interrogatory #6

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    7. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately proceeding interrogatory.

    Defendant’s Response to Plaintiff’s Interrogatory #7

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    8. State fully, completely, and at length the factual basis of each and every defense which you now assert or will insert in this action

    Defendant’s Response to Plaintiff’s Interrogatory #8

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    9. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory.

     

    Defendant’s Response to Plaintiff’s Interrogatory #9

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    10. State the name, occupation, business address and telephone number of each person who has reliable information relevant to support the contentions you make in your defense in this matter, together with a summary of the information that person has knowledge of.

    Defendant’s Response to Plaintiff’s Interrogatory #10

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    11. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory.

    Defendant’s Response to Plaintiff’s Interrogatory #11

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    12. State at length and verbatim the contents of each and every document, written, paper or letter which you intend to utilize as a basis or grounds for any defense in this action or which you intend to offer into evidence upon the trial of this action.In addition, state the date and circumstances of preparation or receipt of each such item.

    Defendant’s Response to Plaintiff’s Interrogatory #12

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    13. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory.

    Defendant’s Response to Plaintiff’s Interrogatory #13

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    14. If you have not admitted any one or more of Plaintiff’s Request for Admissions served upon you of this day herewith, then with respect to each such request not fully admitted, state all facts known to you directly or indirectly, which you contend to be a basis for denial or refusal to admit each search request.

    Defendant’s Response to Plaintiff’s Interrogatory #14

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    15Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory.

    Defendant’s Response to Plaintiff’s Interrogatory #15

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    16. State verbatim any communication or admission by the Plaintiff that you contend to support your defense in this action.

    Defendant’s Response to Plaintiff’s Interrogatory #16

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    17. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory.

    Defendant’s Response to Plaintiff’s Interrogatory #17

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    18. As to each of Plaintiff’s Request for Admissions that you have denied based upon a lack or insufficiency of knowledge, provide a complete description of any and all actions you have taken and/or inquires that you have made to provide the answer to such Request for Admission.

    Defendant’s Response to Plaintiff’s Interrogatory #18

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    19. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory

    Defendant’s Response to Plaintiff’s Interrogatory #19

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    20. Please state with particularity each and every payment made by you or on your behalf to the plaintiff Citibank N. A.THE HOME DEPOT CONSUMER, or any other predecessor, along with the date of the payment, the specific bill, account or invoice such payment was to apply, the balance you alleged was owing at time of said payment, to whom the payment was made, the purpose of the payment and any indication that the payment was received Plaintiff.

    Defendant’s Response to Plaintiff’s Interrogatory #20

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    21. Request for Production of Documents Produce any and all documents which you contend relate to and/or support the answer given to the immediately preceding interrogatory.

    Defendant’s Response to Plaintiff’s Interrogatory #21

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    Here is what it is looking  like  for Admissions

    I. Responses to Request for Admissions

    Defendant(s) responses to Request for Admissions as follows:

    1. You have heretofore received original, or copies of the document(s) attached to plaintiff’s complaint.

    Defendant’s Response to Plaintiff’s Request for Admissions #1

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    2. Each of documents attached to Plaintiff’s a complaint is genuine original document or a true copy thereof.

    Defendant’s Response to Plaintiff’s Request for Admissions#2

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    3. CITIBANK, N.A. extended credit to Defendant pursuant to a(n) THE HOME DEPOT CONSUMER credit card account.

    Defendant’s Response to Plaintiff’s Request for Admissions#3

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    4. Defendant accepted and/or use credit referenced in Plaintiff’s complaint.

    Defendant’s Response to Plaintiff’s Request for Admissions#4

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    5. The principal balance is accurate.

    Defendant’s Response to Plaintiff’s Request for Admissions#5

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    6. The balance sued for in this action is due and owing by Defendant to Plaintiff.

    Defendant’s Response to Plaintiff’s Request for Admissions#6

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    7. Written demand has been made by Plaintiff upon Defendant for payment of the claim that is the subject of this action more than 30 days prior to the date hereof.

    Defendant’s Response to Plaintiff’s Request for Admissions#7

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    8. Defendant is not entitled to any credits, offsets, or deductions except as have previously been deducted.

    Defendant’s Response to Plaintiff’s Request for Admissions #8

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    9. There are no facts upon which Defendant relies as a basis for any defense in this action.

    Defendant’s Response to Plaintiff’s Request for Admissions#9

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    10. There are no documents, writings, letters,records or papers of any sort which Defendant intends to utilize as evidence of or a basis for any defense in this action.

    Defendant’s Response to Plaintiff’s Request for Admissions#10

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    11. Defendant agreed to pay interest on the outstanding credit balance.

    Defendant’s Response to Plaintiff’s Request for Admissions#11

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    12. Interest on the claim asserted herein by Plaintiff is due in the amounts established by applicable law and by the charges shown in the attachments to Plaintiff’s complaint

    Defendant’s Response to Plaintiff’s Request for Admissions#12

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    13. Every statement or allegation contained in Plaintiff’s complaint is true and correct.

    Defendant’s Response to Plaintiff’s Request for Admissions#13

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    14. Defendant received statements of account, copies of which are attached hereto as Exhibit “A”

    Defendant’s Response to Plaintiff’s Request for Admissions#14

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    15. Defendant did not object to charges on the statements of account

    Defendant’s Response to Plaintiff’s Request for Admissions#15

    OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

  8. 1 minute ago, nobk4me said:

    You need to object to all of them.  Like this: OBJECTION.  Arbitration has been elected, and a jurisdictional motion is before the court.  The scope of discovery is to be determined by the arbitration forum.

    Copy and paste that into every one of their discovery requests.  The reason for this is, participating in discovery may waive your arbitration rights by going too far in litigation.  And you can't just ignore them, either.   Admissions not answered are deemed admitted.

     

    ok ok thanks, i will answer that o the interrogators and admission  the same way and as  for as request for documentation  what should i..... say the same thing ....

     

    thanks

     

    so  no MTC needed

  9. 19 minutes ago, key22 said:

    OK MCM sent me the discovery interrogatories , request for docs, ad admission. So on 6/15/21 i submitted my MTC for private Arb.  court date is set for 9/2/21 ...What should i do about the  discoveries in NC. I only have a few more days to respond...thanks in advance  

    here is what i found so far...but this does not looking like it is helping

    @Bulldoger

     

    CHAPTER 1A.

    Rules of Civil Procedure.

     

    §1A-1. Rules of Civil Procedure.

    The Rules of Civil Procedure are as follows:

    ARTICLE 5.
    Depositions and Discovery.

    Section

    Rule 37. Failure to make discovery; sanctions.

    (a) Motion for order compelling discovery.—A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:

    1. Appropriate Court.—An application for an order to a party or a deponent who is not a party may be made to a judge of the court in which the action is pending, or, on matters relating to a deposition where the deposition is being taken in this State, to a judge of the court in the county where the deposition is being taken, as defined by Rule 30(h).
       
    2. Motion.—If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a), or a party fails to answer an interrogatory submitted under Rule 33, or if a party, in response to a request for inspection submitted under Rule 34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question shall complete the examination on all other matters before he adjourns the examination in order to apply for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Rule 26(c).
       
    3. Evasive or Incomplete Answer.—For purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.
       
    4. Award of Expenses of Motion.—If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney's fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is denied, the court shall, after opportunity for hearing, require the moving party to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney's fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust. If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.

    (b) Failure to comply with order.—

    1. (1) Sanctions by Court in County Where Deposition Is Taken.—If a deponent fails to be sworn or to answer a question after being directed to do so by a judge of the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.
       
    2. (2) Sanctions by Court in Which Action Is Pending.—If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under section (a) of this rule or Rule 35, or if a party fails to obey an order entered under Rule 26(f) a judge of the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
       
      1. An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
         
      2. An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
         
      3. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
         
      4. In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
         
      5. Where a party has failed to comply with an order under Rule 35(a) requiring him to produce another for examination, such orders as are listed in subdivisions a, b, and c of this subsection, unless the party failing to comply shows that he is unable to produce such person for examination. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

    (c) Expenses on failure to admit.—If a party fails to admit the genuineness of any document or the truth of any matter as requested under Rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney's fees. The court shall make the order unless it finds that

    1. the request was held objectionable pursuant to Rule 36(a), or
       
    2. the admission sought was of no substantial importance, or
       
    3. the party failing to admit had reasonable ground to believe that he might prevail on the matter, or
       
    4. there was other good reason for the failure to admit.

    (d) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.—If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails

    1. to appear before the person who is to take his deposition, after being served with a proper notice, or
       
    2. to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or
       
    3. to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under subdivisions a, b, and c of subsection (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. The failure to act described in this section may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by Rule 26(c).

    (e), (f) Reserved for future codification purposes.

    (g) Failure to participate in the framing of a discovery plan.—If a party or his attorney fails to participate in good faith in the framing of a discovery plan by agreement as is required by Rule 26(f), the court may, after opportunity for hearing, require such party or his attorney to pay to any other party the reasonable expenses, including attorney's fees, caused by the failure. (1967, c. 954, s. 1; 1973, c. 827, s. 1; 1975, c. 762, s. 2; 1985, c. 603, ss. 5-7.)

    19 minutes ago, key22 said:

     

     

  10. 16 minutes ago, key22 said:

    @Bulldoger  thanks i  was just wanting to make sure i had this correct so i should follow the  MTC like Western Sky and do the ORDER TO COMPEL ARBITRATION AND STAY PROCEEDINGS..... or all i need to file in is the the order ...i am thinking you mean both of these things need to be done....

    hey to add to this i was reading the other informtion you sent and this got me to thinking

     

    Very Important Note:  It is imperative that when you file an answer, you mention arbitration as a defense.  In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration.  In your answer, after you deny all allegations in the complaint, you should create a new section with the following title:  Affirmative Defense”.  Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. ........so when i filed my answer i do a affirmative defense but but it did not have anything in there about  Arb.  does this mean i cant do it now

  11. 1 hour ago, BackFromTheDebt said:

    Please remove your name from the post

     

    17 hours ago, Bulldoger said:

    I sure you two will prevail we will help along the way. Understand that Western Sky is defendant (that's you) and Brown is plaintiff that's JDB. You need to cut out tribal stuff and use the fed stuff and N.C. stuff there layout and how the argument is presented. 

    crazy anyone would agree to 139% APR  2.5 K loan have to payback14K.  

    Hey i was able to look at the information what do you think about this

    MTC-MCM.doc

  12. 3 hours ago, Bulldoger said:

    I tag you on another thread where I put some info.  But I also ran across this talking about court ordered arbitration which was done in you case. 

    (b)Exemption and Withdrawal From Arbitration. The court may exempt or withdraw any action from arbitration on its own motion, or on the motion of a party, made not less than 10 days before the arbitration hearing and a showing that:

    do you have a hearing date yet?

    (1) the action is excepted from arbitration under Arb. Rule 2(a)(1) this does not apply in your case.

    or

    (2) there is a compelling reason to do so.

    So in your motion you need to clearly point out your compelling reason why court arbitration is improper venue as the contract expressly states the correct venue is AAA and that federal arbitration law over rules NC state laws that place this case in NC court arbitration.  

     

    Rule 2 - Actions Subject to Arbitration, N.C. R. Ct. Ord. Arb. 2

    Ok i will look for that tag... any and all information is helpful at this point. I so thank you like for real

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