nobk4me

Members
  • Content Count

    1,834
  • Joined

  • Last visited

  • Days Won

    30

Everything posted by nobk4me

  1. Note the language: We won't REQUIRE you to arbitrate . . . Meaning they can't force you to arbitrate. But you want arbitration. I don't see their language as a prohibition when you want to arbitrate, in those two cases.
  2. Yes, the OC's cardmember agreement applies to the JDB because the JDB steps into the shoes of the OC.
  3. More thoughts: First, who is suing you, the OC or a JDB? Who is the OC (just asking for terms of arb clause)? A JDB will usually fold when you go for arbitration, especially for the small amount in dispute here. Some things to keep in mind for the pretrial: if, in fact, the plaintiff's attorney is a no-show, you should make an oral motion to dismiss the case with prejudice. If the plaintiff does not respond to your motion (and JDBs sometimes don't), you should make note of that at the pretrial and demand that your MTC Arb be granted by default. After all, if the plaintiff filed a motion and you didn't answer, they would win by default. But don't be surprised if the court bends over backwards to accommodate them. No, they won't extend the same leniency to you. If they do send a local rent-a-lawyer, that too can be to your advantage. Arb is probably above their pay grade. They will probably request a continuance to get back to the plaintiff's counsel of record to see what to do.
  4. I think the judgment entry has to do with the order setting the pretrial. If there was a default judgment, there would be no pretrial.
  5. You will need to file a Motion to Compel Arbitration, too. It doesn't have to be filed with the answer, but you should do it relatively soon. Hold off on dealing with AAA. I would wait until the MTC Arb is ruled on for that.
  6. Sounds like you are dealing with a stupid clerk, and maybe a stupid court system as well, that doesn't know what a MTC Arb is. Also sounds like a pretrial hearing has been scheduled. You need to attend and argue for the MTC. I agree with Harry, if the motion has been denied, you should have received an order to that effect. Can you check if there is an online docket, maybe that will show the status of your motion? If you filed the motion correctly, with a copy to the plaintiff's counsel, and followed all the local rules too (sometimes these courts have fees for motions), then the court HAS to rule on it, They can't just ignore it. Ohio case law on this: Capital One v. Collins: https://law.justia.com/cases/ohio/twelfth-district-court-of-appeals/2011/ca2011-05-090.html (Note: if you didn't file the motion properly, file it again, correcting any deficiencies.) At the pretrial, you need to be forceful in arguing for arbitration. By filing the MTC, you have raised a jurisdictional issue that has to be addressed before anything else. The law greatly favors arb, so the law is on your side. No, you don't have to pay anything at the pretrial. But, you should be prepared for perhaps a less-than-neutral court magistrate to be very aggressive in urging you to settle with the plaintiff. You need to be firm and forceful. Don't let them browbeat or intimidate you. Stand your ground. YOU WANT ARB. It's your right under the law and the contract. Period. And, if you want to use the arbitration strategy, you don't want to engage in discovery. Doing so can waive your arbitration rights. If your MTC Arb is denied, I would not go ahead with discovery and the normal litigation process. You should have a right to an immediate appeal. That is what I would do.
  7. Are there other options/remedies you could try, if this was a borderline unethical company? Such as, contacting the state attorney general, Better Business Bureau, and any other consumer protection services/agencies. Ohio has a Consumer Sales Practices Act. Links: https://www.ficlaw.com/business-litigation/archives/the-ohio-consumer-sales-practices-act-what-is-it-does-it-apply-to-me-and-if-it-does-what-do-i-stand-to-lose/ http://codes.ohio.gov/orc/1345
  8. You don't file a counterclaim for arbitration. You file a Motion to Compel Arbitration. Filing a counterclaim would be invoking the court's jurisdiction, which you don't want to do, as that may waive your arbitration rights.
  9. I would file the motion to dismiss. The worst thing the court could do is deny it, so you can move on to arb. (You would also have a great issue for appeal.) The best thing the court can do is grant it. If you don't file the motion, it can't be granted. Be sure to check the court's local rules (usually found on the court's website) to see if the court has any special rules that need to be followed, in addition to the Ohio Rules of Civil Procedure.
  10. nobk4me

    Is it a scam?

    Maybe you could say, next time he calls, that you will be glad to meet him at the police station. Or use an air horn on him.
  11. It sounds like this might be close to the SOL expiring, if that has not happened already. Check your credit report. If the account doesn't appear there, either from the OC or the JDB, chances are it's over 7 years old, and definitely beyond CA's SOL.
  12. I'd like to get some more opinions to help the OP here. Which would be a better course of action, arbitration, or a motion to dismiss for lack of personal jurisdiction? Calling @fisthardcheese, @BV80, @Brotherskeeper
  13. I would not file that answer. Filing the answer is submitting to the court's jurisdiction. Most of the defenses, except for arbitration, won't work, anyway. You need to file a MOTION to dismiss the case for lack of personal jurisdiction - meaning, you do not live in Ohio. See Rule 12(B) of the Ohio Rules of Civil Procedure: (B) How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief. When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56. I have bolded the applicable part. If you do not live in Ohio, then an Ohio court has no jurisdiction over you. You need to attach proof of Canadian residency to your motion.
  14. Now you have an even better strategy. If you are a permanent resident of Canada, and not of Ohio, then the Ohio court has no jurisdiction over you. I would file a motion to dismiss for lack of jurisdiction.
  15. Is there an arbitration clause in the OC agreement? If so, then arbitration will be your best strategy. Best info on arb is here:
  16. When the OC is Synchrony, arbitration is the best option. Let's just hope you have not waived your arbitration rights by engaging in discovery. Best info on arbitration is here:
  17. If I understand correctly, Minnesota has "pocket docket," which means the case is not filed with the court at first. Which no doubt confuses people into thinking the summons is fake.
  18. You can have multiple sets, or rounds, of discovery. Answers to the first set may lead to further questions.
  19. Not very compelling reasons to give to a judge. You may not think the case needs to be heard in a court of law, but the plaintiff probably does. The second argument, they will say, can be made to the court as well as an arbitrator. Better reasons for arb: 1) it's your RIGHT under the contract; 2) the law favors arb (including the Supreme Court); 3) arbitration is a private proceeding, whereas court is public. Everything done in court is a matter of public record. You prefer your financial matters to be private.
  20. You file your answer (and MTC Arb, when you file it) with the court AND send a copy to the attorney. Include a certificate of service with each pleading, which states you have sent a copy to the plaintiff's lawyer. Who is suing you, the OC or a JDB?
  21. I quoted Ohio's Rule 41 as an example of a RCP that does make a second dismissal with prejudice. Yes, I know the OP is in Texas, and I advised the OP earlier to check his state's RCP.
  22. Ohio RCP Rule 41: Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits of any claim that the plaintiff has once dismissed in any court.
  23. Synchrony has a great arbitration clause. Look into the arbitration strategy.
  24. For an OC of Synchrony, your best strategy is arbitration. Best info on arb is here: