Brotherskeeper

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Brotherskeeper last won the day on September 10

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  1. Thanks. This makes sense. I'm sure Shelly7 doesn't want to have anything more to do with court. @SJULawAlum likely knows how to do this if absolutely necessary. I hope Midland will agree to terms sooner rather than later and move on.
  2. Here's the court order: @fisthardcheese As I understand this order, the parties are "directed to proceed" to arb. Defendant is "directed to commence" it by 10/15 per the cc agreement. The court case is dismissed without prejudice. Only if defendant fails to commence by 10/15, can plaintiff restore the case, which appears to me to be a kind of quasi-stay of case--but only for the plaintiff. Once a case is dismissed w/out prejudice, can a defendant go back to restore it, if the court's order doesn't address any failure on the plaintiff's part?
  3. @MIOMH This is the Citi Card Section 11 Arbitration provision you posted a while ago. Is it the correct agreement Plaintiff is working from? Paying for arbitration fees • We’ll pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.
  4. Yes. Plaintiff is Pl. Plaintiff's (possessive) is Pl.'s. Defendant is Def. Defendant's is Def.'s.
  5. @arbitration or chapter 7 I believe you've left off this important paragraph from your MTCA. It should be be included as Paragraph #8, with the current Paragraph #8 becoming Paragraph #9. 8. The attorney for Plaintiff was contacted for concurrence with the relief sought in this Motion. A copy of the Proposed Order that accompanies this Motion was delivered by USPS Certified Mail Return Receipt Requested on September 9, 2019, and signed for on September 11, 2019. (Affidavit of "arbitration or chapter 7", Exhibit A.) Defendant received no response from Plaintiff prior to the filing of this Motion.
  6. Again, I would change the title on your Motion to: DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION 1.) You have an error in the correct case citation for AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) in your para. #6. I've corrected it in the quote below. I don't think the word "Ruling" needs to be there. Only the parties' names in the cite should be italicized, but not underlined. 6. The Supreme Court Ruling emphasized in its decision in AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a 'liberal federal policy favoring arbitration,' Moses H. Cone, supra, at 24, 103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and enforce them according to their terms. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).” 2.) In the paragraph below from AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the words Volt, Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., and ld should be in italics as shown. Furthermore, “The “principal purpose: of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt, 489 U.S., at 478; see also Stolt- Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S.___,___(2010)(slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course to the savings clause); 3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement; and 4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement…” ld.
  7. You are being sued on an Account Stated cause of action. You will have to file an affidavit with your Answer. There's a lot of info on Michigan threads here about how to prepare this affidavit. The Complaint was signed on 8/25/19. The attached affidavit of PRA was notarized on 7/24/19. This is more than 10 days in advance of the filing date of the Complaint. Remember, this does not invalidate the PRA affidavit; it merely means the affidavit is not regarded as prima facie evidence. (IANAL) 600.2145 Open account or account stated; proof, counterclaim. Sec. 2145. In all actions brought in any of the courts of this state, to recover the amount due on an open account or upon an account stated, if the plaintiff or someone in his behalf makes an affidavit of the amount due, as near as he can estimate the same, over and above all legal counterclaims and annexes thereto a copy of said account, and cause a copy of said affidavit and account to be served upon the defendant, with a copy of the complaint filed in the cause or with the process by which such action is commenced, such affidavit shall be deemed prima facie evidence of such indebtedness, unless the defendant with his answer, by himself or agent, makes an affidavit and serves a copy thereof on the plaintiff or his attorney, denying the same. If the defendant in any action gives notice, with his answer of a counterclaim founded upon an open account, or upon an account stated, and annexes to such answer and notice a copy of such account, and an affidavit made by himself or by someone in his behalf, showing the amount or balance claimed by the defendant upon such account, and that such amount or balance is justly owing and due to the defendant, or that he is justly entitled to have such account, or said balance thereof, set off against the claim made by said plaintiff, and serves a copy of such account and affidavit, with a copy of such answer and notice, upon the plaintiff or his attorney, such affidavit shall be deemed prima facie evidence of such counterclaim, and of the plaintiff's liability thereon, unless the plaintiff, or someone in his behalf, within 10 days after such service in causes in the circuit court, and before trial in other cases, makes an affidavit denying such account or some part thereof, and the plaintiff's indebtedness or liability thereon and serves a copy thereof upon the defendant or his attorney, and in case of a denial of part of such counterclaim, the defendant's affidavit shall be deemed to be prima facie evidence of such part of the counterclaim as is not denied by the plaintiff's affidavit. Any affidavit in this section mentioned shall be deemed sufficient if the same is made within 10 days next preceding the issuing of the writ or filing of the complaint or answer.
  8. @arbitration or chapter 7 I'm reading your docs bit by bit. I'll comment as I have the time. (IANAL!) On the Notice of Hearing, I would use the actual title of the motion on "Motion Title" line. Defendant's Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, To Stay Proceedings Pending Arbitration. I would put "See the attached Motion to Compel Arbitration, Affidavit and Exhibit A." in the "Motion" box. You've titled your Motion as: DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION Because Michigan rules have a motion to compel arb treated as a motion for summary disposition, you are not also motioning to dismiss. (IANAL) I would strike "Motion to Dismiss" and title this motion: DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION
  9. Yes it would help to see the documents. This anxiety is probably not going to find relief anytime soon and may increase as the work gets harder and the stakes higher. Calling PRA's attorney to discuss your financial situation was a good suggestion. They may reject it, but you'll know that you tried. Follow the advice given about that conversation. I sent you a link for Roscommon that includes information about legal aid that may be available if you qualify. An answer to the complaint is due by the 21st day after service. You have the court forms and instructions on how to fill it out. Threads here discuss many of the same issues with examples of what to modify for your case. Under the Michigan rules for pleading, you may file an amended answer within 14 days of filing your first answer. You may file this amended answer without the court's permission or the stipulation of the plaintiff. If you should make an error on the first answer, know that you have an extra 14 days to fix it. An amended answer takes the place of the first answer, as if the first answer never happened. This is covered in the court rules of civil procedure. This "second chance" may take some of the pressure off of you. Everything else you're required to do to fight a case in court will require you to be a fast learner.
  10. Have you been sued in the wrong venue? You don't live in the county the suit is filed in? The only affidavit attached to the Complaint as an exhibit is from a custodian of records from PRA, correct? What does the affidavit state? Plaintiff's "Exhibit A" is solely the PRA affidavit and does not include any credit card statements or a copy of the Cap One cardholder agreement or an affidavit from Cap One, correct? I'm assuming this debt is not from identity theft or fraud. Do you have good reason to think PRA will not be able to produce any statements from Cap One that will have your name and address on it or show a copy of an original Cap One account statement that indicates a balance due that is the same as the balance sought in the complaint? Is PRA and/or Cap One reporting a tradeline of this account on your Experian, Equifax and TransUnion credit reports? You indicated you disputed this account with these bureaus. What was the dispute? What was the result? What exactly are you hoping to reveal from their hand?
  11. You need to begin to read and understand the Michigan Court Rules, laws and the self-help information. At the pre-trial hearing, or if your assigned judge sends out a calendar, a deadline to complete all discovery will likely be set. Your judge may have her/his own rules for parties to follow. Those court rules may not conflict with Michigan Court Rules. (IANAL) Discovery rules are found here: Rule 2.302 General Rules Governing Discovery (A) Availability of Discovery. (1) After commencement of an action, parties may obtain discovery by any means provided in subchapter 2.300 of these rules. (2) In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties. A motion for discovery may not be filed unless the discovery sought has previously been requested and refused. Here is the statute on venue: MCL 600.1621 Venue; determination; exceptions. Sec. 1621. Except for actions provided for in sections 1605, 1611, 1615, and 1629, venue is determined as follows: (a) The county in which a defendant resides, has a place of business, or conducts business, or in which the registered office of a defendant corporation is located, is a proper county in which to commence and try an action. Here is the Michigan Court Rule on changing venue: Rule 2.221 Motion for Change of Venue (A) Time to File. A motion for change of venue must be filed before or at the time the defendant files an answer. (B) Late Motion. Untimeliness is not a ground for denial of a motion filed after the answer if the court is satisfied that the facts on which the motion is based were not and could not with reasonable diligence have been known to the moving party more than 14 days before the motion was filed. (C) Waiver. An objection to venue is waived if it is not raised within the time limits imposed by this rule. Rule 2.222 Change of Venue; Venue Proper (A) Grounds. The court may order a change of venue of a civil action, or of an appeal from an order or decision of a state board, commission, or agency authorized to promulgate rules or regulations, for the convenience of parties and witnesses or when an impartial trial cannot be had where the action is pending. In the case of appellate review of administrative proceedings, venue may also be changed for the convenience of the attorneys. (B) Motion Required. If the venue of the action is proper, the court may not change the venue on its own initiative, but may do so only on motion of a party.
  12. (I am not a lawyer.) According to the Michigan Court Rules for Civil Procedure, the 21-day clock (if you were served in person) begins to run: a.) the day after service of the summons and complaint, b.) includes weekends, and c.) includes the 21st day as the day to turn it in. If that 21st day is a weekend or court holiday, you have to turn it in by the end the next business day. You need to check the hours your court clerk's office is open; some close at 4:30 PM. Rule 1.108 Computation of Time In computing a period of time prescribed or allowed by these rules, by court order, or by statute, the following rules apply: (1) The day of the act, event, or default after which the designated period of time begins to run is not included. The last day of the period is included, unless it is a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order; in that event the period runs until the end of the next day that is not a Saturday, Sunday, legal holiday, or day on which the court is closed pursuant to court order. Here's a court approved Answer form that has instructions for you to look at: https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc03.pdf
  13. @PoorSnuffleupagus Please take some time to explore the link I posted above. You were just served last night. You have time to learn before you need to take any action. There are many threads of Michigan members that contain sample Answers, and there is a self-help fill-in form at the link. I think you've been given a lot of good advice to consider. It is unfortunate that arbitration is not available to you. Fighting in court takes a lot of time to learn and energy--all while under duress. It's tough when in good health, tougher still while disabled. Please ask questions here. You may qualify for indigency for waiver of court fees: https://michiganlegalhelp.org/self-help-tools/going-court/fee-waivers-court-cases You can find links to possible legal aid to see if your financial situation qualifies you as low-income.