Brotherskeeper

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  1. Yes. If your motion to compel the plaintiff to arbitrate and stay the case is granted, the dispute must move by court order to arbitration. Whether or not the arbitration provision in the governing contract is valid and enforceable; and whether or not the dispute falls within the scope of the parties’ arbitration agreement, will determine if the court or the arbitrator has subject matter jurisdiction over the dispute. Who gets to hear and decide the disputes over this Barclays account is a material fact. Remember this from the the first page of this thread? Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). '" . . . .Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting T.R. 56(C)). "A fact is `material' if its resolution would affect the outcome of the case, and an issue is `genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted)."' Under your court rules, the plaintiff must have a certain amount of time to file a response to your your motion. The judge won't rule until the opposing side has had that opportunity. You may also have under your rules a time period in which to file a reply to their response. The judge has to have a reasonable amount of time to rule after giving the parties their chance to respond. The shutdown is a factor that has to be considered as well.
  2. @cedric_86, @BV80 From the Compelling and Staying Arbitration in Indiana white paper I posted on the first page of this thread: THRESHOLD ISSUES FOR THE COURT TO DECIDE When deciding an application to compel or stay arbitration the court plays a gatekeeping role that is limited to determining whether: The parties have a valid and enforceable arbitration agreement (see Valid Arbitration Agreement). The dispute falls within the scope of the parties’ arbitration agreement (see Scope of Arbitration Agreement). (See Harlow v. Parkevich, 868 N.E.2d 822, 826 (Ind. Ct. App. 2007); Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 284-85 (Ind. Ct. App. 2004) (citing Mislenkov v. Accurate Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind. Ct. App. 2001)).) The court may also determine whether the party seeking arbitration has waived its right to arbitrate by acting in a manner inconsistent with the right to arbitrate (see Waiver). 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)). Under the IUAA, once the court determines the parties contracted to submit their dispute to arbitration, the court must compel arbitration (Ind. Code § 34-57-2-3(a); see Daimler Chrysler, 814 N.E.2d at 285). The arbitrator, not the court, resolves disputes about procedural preconditions to arbitration, such as delay or waiver of the contract containing the arbitration clause (see BG Grp., PLC v. Rep. of Argentina, 572 U.S. 25, 34-35 (2014)). Courts also leave the threshold arbitrability determinations to the arbitrator if the parties’ arbitration agreement clearly and unmistakably delegates these issues to the arbitrator (see Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70-73 (2010))." WAIVER 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).)
  3. @cedric_86 Plaintiff has combined into one document its Response to your motion to compel arbitration with its own Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment. (IANAL) You will actually be combining Defendant's Reply to Plaintiff's Response in opposition to your Motion to Compel with Defendant's Response in Opposition to Plaintiff's Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment. I don't know about Indiana rules, but in my state, a reply to a response in opposition to a motion does not re-argue what was presented in the original motion; it addresses an issue raised in the response. In your case, Unifund raises the AAA rules and confuses or conflates the Barclays agreement's use of "elect" with "commence," as I and BV80 covered in previous posts. Unifund does not dispute that you may elect arbitration. They don't appear to dispute that the sworn Barclays account agreement you attached to your motion affidavit is the governing contract. They don't dispute that they are bound by this agreement. (In fact, one of their Complaint counts is for breach of contract.) Unifund misinterprets and misstates the terms of the Barclays arbitration provision to claim you are required to take actions the agreement does not require.
  4. @cedric_86 What is your deadline to file your response to this MSJ?
  5. @SJULawAlumI'm sending a pat and a high five--from the appropriate social distance of course!
  6. Mission accomplished against a pro se defendant. Your Answer contains a general denial and an Affirmative Defense that the court lacks subject matter jurisdiction due to an arbitration clause in the underlying contract that you choose to elect. (The facts stated here are your burden to prove.) It does not appear that you attached a sworn copy of the Barclay's agreement as an exhibit to your Answer. Your court rules may require that a copy of the contract be attached when a pleading (complaint or answer) relies on a written instrument. If you need to amend your Answer, this might be an area to focus on. IANAL. It seems that your motion to compel arbitration includes a copy of the Barclay's agreement attached to an affidavit. This likely makes--as Fisthardcheese stated--your Answer less important than your pending MTC and your response in opposition to the MSJ.
  7. This Indiana Supreme Court case has been cited 467 times according to Google Scholar: Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). '" . . . .Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting T.R. 56(C)). "A fact is `material' if its resolution would affect the outcome of the case, and an issue is `genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted)."' INDY AUTO MAN, LLC v. KEOWN & KRATZ, LLC, 114 NE 3d 32 - Ind: Court of Appeals 2018 "Goodwin v. Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Our Supreme Court has cautioned that "[a]s long as competent evidence has been designated in response to a summary judgment motion, ... `weighing [the evidence] —no matter how decisively the scales may seem to tip—[is] a matter for trial, not summary judgment.'" Stafford v. Szymanowski, 31 N.E.3d 959, 963 (Ind. 2015) (quoting Hughley v. State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)). In other words, if any weighing of evidence—of the facts— is required, then summary judgment is inappropriate."
  8. @cedric_86 Here is an attorney practice note with helpful info: Compelling and Staying Arbitration in Indiana "Venue When there is already an action pending between the parties, for example because a party started an action over an arbitrable dispute, the party seeking to compel arbitration must file the application as a motion in the already pending action (Ind. Code § 34-57-2-3(c))."
  9. @cedric_86 The Barclay's arb provision you linked to states: "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 the commencement of trial." This Barclay's agreement uses the terms "elected" and "commence" for arbitration. The above quoted term does not require you to "commence" arbitration if a claim is brought in court; it states that you may "elect" arb instead, and do not waive your right to "elect" any time before commencement of trial. In your Answer's Affirmative Defenses section you explicitly notified plaintiff that you have elected to exercise your contractual and binding right to arbitration instead of court. At that point upon receipt of your Answer, plaintiff could have dismissed its court action. And, upon receipt of your motion to compel them to arbitrate the disputes, plaintiff could have stipulated to the motion's proposed order. Instead, they are opposing your motion. Why would you actually "commence" arbitration of these disputes with a court case ongoing that hasn't been stayed yet? "AFFIRMATIVE DEFENSES 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”.
  10. Yes? From what I've skimmed so far, you're entitiled to file a general denial answer and you asserted the affirmative defense of arb in it. Fisthardcheese advised how to respond to the MSJ. Check your rules of civil procedure to make certain you follow them. I am not a lawyer, but it would seem a properly drafted, filed and scheduled motion to compel arbitration is a material fact to defeat the MSJ. Can you please post the arbitration clause from the credit card agreement?
  11. @Fishman93 Congratulations! Was the court case stayed or dismissed? Please reread Fisthardcheese's pinned thread on arbitration. I believe Fist advises that you include a copy of the judge's signed court order of your motion along with your claim demand to AAA. This is especially important if the plaintiff is Midland or one of the other JDBs that haven't complied with AAA's rules. Without the court order, AAA often sends a letter declining to arbitrate those claims.
  12. Please let us know what the attorney says about this. Thanks.
  13. @ej24 Here's the link to Midland's Consumer Bill of Rights info: CONSUMER BILL OF RIGHTS Article 2: Hardship -We suspend collection activities when a consumer demonstrates that he or she is experiencing significant financial hardship due to medical issues.