Brotherskeeper

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  1. @elansus You were given leave by the magistrate at a hearing to file your DEFENDANT'S REPLY TO PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND STAY THE CASE PENDING ARBITRATION. If you read MikeB35's threads, the rules that govern a reply to a response are discussed. Normally, you'd have to file a motion for leave (aka permission) to file a reply brief. (IANAL) A reply is limited to addressing only those new issues raised by Plaintiff's Memorandum in Opposition that you did not argue or raise already in your Motion to Compel. You aren't re-arguing what you've already argued and supported in your MTC. Read their Oppo response to see what their main arguments are. You make your arguments to refute theirs and cite the case record, court rules and/or laws that support your arguments. I already pointed out some of these I've noticed in my posts above, with citations from the record. If you can pull a rough draft together, we can refine it here. IMO Here are the main opposition arguments they've raised: I.) "As the Defendant has failed to assert a basis for use of the Arbitration provision in the Card Member agreement, as set forth more fully herein, this case is not subject to arbitration." II.) "The Defendant alleges that the terms and conditions governing the account contain an arbitration provision to which the parties are bound. The Defendant is mistaken." III.) "Importantly, the Defendant denies (1) entering into a credit agreement with Plaintiff, (2) breaching the terms of the credit card agreement, and (3) the balance sought. See Plaintiff's Complaint filed September 16,2019, at Para. No.: 3." IV.) "The Defendant cannot assert a right under a contract in which he claims not to be a party. Likewise, any reliance by the Defendant on the terms and conditions governing the account is misplaced and does not apply to the Defendant as he alleges he did not enter into a credit agreement with Plaintiff." V.) "His denials in his answer are then a purposeful attempt to mislead the Court."
  2. MikeB35 addressed this issue in his PRA Reply Brief. Please see his actual brief for correct formatting and quote indentations. (IIRC hat tip to @nobk4me for the Cap 1 v Rotman case): II. This claim is referable to arbitration under the parties’ Agreement and Defendant is not required to initiate arbitration before seeking a stay. PRA claims that the “Cardmember Agreement” requires Defendant to start the arbitration by filing a demand in the proper forum and paying the required fee, or follow the procedure required for Plaintiff to start the arbitration. Defendant’s failure to comply with the “Cardmember Agreement” requirements means this Court should not be required to stay this matter. Since the Response indicates “Discover” is the Plaintiff and not PRA, perhaps the Discover Cardmember Agreement includes those requirements. (Pl.’s Res., pg.7.) The “DELL PREFERRED ACCOUNT CREDIT AGREEMENT” (Pl.’s Ex. C) does not. PRA asserts Defendant failed to take action the parties’ Agreement and Ohio case law never require him to take. When presented with this issue in Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480., the court ruled, "{¶ 2} The issue presented in this appeal is whether a defendant may obtain a stay of proceedings pending arbitration without having first initiated the arbitration proceedings. We conclude that the initiation of the arbitration proceedings is not a prerequisite for obtaining a stay of the action pursuant to R.C. 2711.02(B)." Also noting, “Nothing in the above statute [R.C. 2711.02(B)] imposes a requirement that a party must initiate arbitration before seeking a stay.” Capital One Bank at ¶ 8. In fact, Defendant’s actions closely comport with those described in Harsco Corp. v. Crane Carrier Co. (1997), 122 Ohio App.3d 406, 410, 701 N.E.2d 1040: "…This is true because Crane affirmatively pled the existence of an applicable arbitration clause in its answer, putting both Harsco and the trial court on notice of the arbitration clause. Based on the foregoing, we find that Crane properly preserved its right to arbitration, based on the totality of the circumstances, by asserting the right to arbitrate in its answer, by filing a motion for stay and referral to arbitration three months later, and by not conducting itself in a manner acknowledging that the trial court had jurisdiction over the dispute." (Emphasis added.) The Capital One Bank court further determined that when the arbitration agreement gives either party the right to elect arbitration of any claim, “either party had the right to have the matter referred to arbitration. Case law instructs that where a matter is subject to arbitration, “[t]he burden is on the plaintiff to commence the arbitration action, and the parties are obliged to cooperate and respond in a timely manner.” Sexton v. Kidder, Peabody & Co., Inc., 8th Dist. No. 74833, 1999 WL 652028 (Aug. 24, 1999). See also Kessinger v. SR83 Hotel Partners, LLC, 5th Dist. No. 04-CA-83, 2005-Ohio-4110, 2005 WL 1897376, ¶ 17; Johnson v. E. Bay Kia, Inc., S.D.Ala. No. 08-00656-CG-B, 2009 WL 928674, at *1 (Apr. 2, 2009)” Capital One at ¶ 9. “Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted.” Id.
  3. When are the requests for admissions due? If you fail to return your responses by the deadline, are the requests deemed admitted?
  4. The Plaintiff's Motion Opposition Response argues: "Importantly, the Defendant denies (1) entering into a credit agreement with Plaintiff, (2) breaching the terms of the credit card agreement, and (3) the balance sought. See Plaintiff's Complaint filed September 16,2019, at Para. No.: 3. The Defendant cannot assert a right under a contract in which he claims not to be a party. Likewise, any reliance by the Defendant on the terms and conditions governing the account is misplaced and does not apply to the Defendant as he alleges he did not enter into a credit agreement with Plaintiff." Plaintiff is Crown Asset Management, LLC. The original creditor is Comenity Bank. If you "denied" anything it was that, "Plaintiff, is the assignee of Defendant's Comenity Capital Bank account, account#XXXXXXXXX ("Account")." However, you actually pleaded that you are, "without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's claim." Plaintiff's own Statement of Facts in its Opposition Response to your MTC asserts: "This action is based on a credit card debt incurred by the Defendant, ("Defendant") with the original creditor, Comenity Bank, who later sold and assigned all rights to Crown Asset Management, LLC, ("Plaintiff')." The Comenity Agreement states: "3. Covered Claims: “Claim” means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account." "12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law."
  5. In my state, each numbered paragraph of an Answer corresponds with the numbered paragraph of the Complaint, meaning you answer (plead) each allegation of a complaint's numbered paragraph in a paragraph with the same number. (Some states allow a general denial of all allegations.) Your Answer doesn't exactly do this, but there should be no confusion: "2. Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides' litigation rights in court." Your Affirmative Defense 1 asserts: Your motion states: You did not post a copy of the affidavit that you attached the credit card agreement to as an exhibit. What did your affidavit state?
  6. The Complaint at paragraph 1 states: Your Answer for paragraph 1's allegations is: Then you stated: (IANAL) As I read your Answer, you pleaded that you were without information or knowledge to form an opinion as to the truth of Plaintiff's Complaint's paragraphs 1, 2-7. In your Answer's paragraph 3, you DENY Plaintiff's "remaining allegations" which you never specify.
  7. Please do, with redactions for identifying info. To be clear, you asserted in your Answer that you don't remember the debt but did not DENY ever having the debt. If they are not bound by the credti card agreement, where do their rights to enforce the terms come from? (IANAL) The Complaint alleges that you breached the "Account agreement." Rights of assignment of the original account would be spelled out in the Account Agreement.
  8. This is good information to know. Thank you for posting about your case.
  9. @BitsyM Sorry to hear this outcome. Here's some info: https://michiganlegalhelp.org/self-help-tools/money-and-debt/setting-aside-default-or-default-judgment-collection-cases#
  10. Funny how a good day in court can do that. Congratulations! I would take a moment to reread Fisthardcheese's thread on arbitration before taking any action with JAMS. Many of your questions of what to do next are answered in it. You'll find the link to it in his signature on any of his posts in your thread. Follow @Impress 's advice to read your Synchrony arbitration clause to see if it contains this: "If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced."
  11. Love this part: "Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted." Capital One Bank USA v Rotman
  12. Wow! Congratulations. A dismissal with prejudice and a nice pair of slacks. Thank you for leaving behind a great thread as a resource for fellow Tennesseans.
  13. ARBITRATION-RELATED LITIGATION IN TEXAS UPDATED AUGUST 2018
  14. Excellent. In your affidavit, state the internet address you accessed and the date you accessed it to print out the true and correct copy of the entry for the corporation showing the registered agent's name and address. You can check the Florida Bluebook for the proper format for a citation like this. (IANAL)