Brotherskeeper

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Brotherskeeper last won the day on March 31

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  1. @MikeB35 Here's the link to the JAMS form. Fisthardcheese advises you to fill this out as best you can (see his epic arb thread for instructions) and attach it as an exhibit to your reply. https://www.jamsadr.com/adr-forms/
  2. Their court case is stayed pending arb--now for well over a year. They stymied the arbitration process--even though your claim demand was essentially their debt amount. They've put their case in suspended animation.
  3. IIRC--They tried to pull a fast one by refusing to follow the clear terms of the arbitration clause. Instead, they twisted the JAMS rules by omitting the clause that states the parties' agreement would take precedence over the JAMS fee split.
  4. @nobk4me No, not all! Thank you for your input here. I'm not familiar with Ohio court divisions. I'm just looking stuff up and hope it helps! Any expertise or advice you can offer is much appreciated. I believe @MikeB35 said he titled his motion as motion to compel arbitration and stay the case--without including an "in the alternative" clause. He did include the "dismissal or in the alternative stay the case" in his prayer for relief at the end of the motion.
  5. Just to clarify, these 7 are business loans/advances with your personal guarantee, so the JAMS consumer rules don't govern, correct?
  6. Harsco Corp. v. Crane Carrier Co. (1997), 122 Ohio App.3d 406, 410, 701 N.E.2d 1040. "Arbitration is favored because its purpose is `to avoid needless and expensive litigation.'" Fairfield Eng. Co. v. Anchor Hocking Corp. (Apr. 10, 1986), Marion App. No. 9-84-37, unreported, 1986 WL 4367, quoting Springfield v. Walker (1885), 42 Ohio St. 543, 546, 1885 WL 49. [snip] "The general rule is said to be ` * * * that either party to a contract of arbitration may waive it. * * *' [La Nacional Platanera v. N. Am. Fruit & Steamship Corp. (C.A.5, 1936), 84 F.2d 881, 882.] And a plaintiffs waiver may be effected by filing suit. When the opposite party, the potential defendant, is confronted with a filed lawsuit, the right to arbitrate can be saved by seeking enforcement of the arbitration clause. This is done under R.C. 2711.02 by application to stay the legal proceedings pending the arbitration. Failure to move for a stay, coupled with responsive pleadings, will constitute a defendant's waiver." Mills v. Jaguar-Cleveland Motors, Inc. (1980), 69 Ohio App.2d 111, 113, 23 O.O.3d 142,143-144, 430 N.E.2d 965, 967. [Emphasis added ~Brotherskeeper] "413*413 Harsco waived its right to arbitrate the disagreement with Crane by filing its complaint in the Union County Common Pleas Court. Having previously found that Crane's prelitigation conduct did not constitute a waiver of the arbitration clause, its formal opportunity to either waive or invoke its right to arbitration arose after Harsco filed its complaint. To invoke its right to arbitration, Crane needed to file an application with the trial court to stay the legal proceedings pending the outcome of arbitration. Crane filed a motion to stay the legal proceedings pending the arbitration, as well as a request to the court to refer the issues of design and manufacturing defects to arbitration. Crane's requests to the trial court, however, were three months after it filed an answer in the litigation, and after it answered and issued discovery, including depositions." [Emphasis added~Brotherskeeper] [snip] "The record before us demonstrates that Crane filed its motion for stay of proceedings and referral to arbitration within three months after filing its answer. As stated above, the General Assembly, when enacting R.C. 2711.02, did not specify at what point in the litigation process a party must file an application for stay to preserve the right to arbitrate. We recognize that courts of appeals throughout the state have differing opinions regarding the timeliness of a motion for stay of proceedings and referral to arbitration.[5] The better rule of law 416*416 appears to be that a motion for stay of proceedings pending arbitration and a referral to arbitration may be filed after the defending party answers the complaint if (1) the application of the arbitration clause is affirmatively pled in the answer, and (2) the defending parties' conduct, based on the totality of the circumstances under Phillips, does not demonstrate a waiver of the clause. . . ." [Emphasis added~Brotherskeeper] [snip] ". . . .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~Brotherskeeper] U.S. Bank Natl. Assn. v. Allen, 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 42 (3d Dist.) ". . . . A contractual arbitration clause "is generally viewed as an expression that the parties agree to arbitrate disagreements within the scope of the arbitration clause, and, with limited exceptions, an arbitration 1246*1246 clause is to be upheld just as any other provision in a contract should be respected." Williams at 471, 700 N.E.2d 859. "`Arbitration is favored because it provides the parties thereto with a relatively expeditious and economical means of resolving a dispute.'" Kelm v. Kelm, 68 Ohio St.3d 26, 29, 623 N.E.2d 39 (1993), quoting Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992). "Arbitration also has the additional benefit of unburdening crowded court dockets." Hayes at ¶ 15, citing Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 83, 488 N.E.2d 872 (1986). "In light of the strong presumption favoring arbitration, all doubts should be resolved in its favor." Hayes at ¶ 15, citing Ignazio v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, 865 N.E.2d 18, ¶ 18." [Emphasis added~Brotherskeeper] FYI--This case below discusses the dismissal/stay issue, noting there is a split authority: SHAKOOR v. VXI GLOBAL SOLUTIONS, INC., 2017 Ohio 8018 - Ohio: Court of Appeals, 7th Appellate Dist. 2017 {¶38} Appellants argue that the trial court, upon referring the claims for individual arbitration, had no authority under this statute to dismiss the case; they assert that a stay is required. As the parties note, there is a split in authority, regarding whether dismissal is proper when a trial court refers the matter to arbitration. {¶39} There are a number of Ohio courts that cite to the plain language of the R.C. 2711.02(B), as quoted above—which only mentions a stay, not dismissal, and uses the word "shall"—to conclude that trial courts should stay cases pending arbitration. See, e.g., U.S. Bank Natl. Assn. v. Allen, 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 42 (3d Dist.) ("As is apparent from the language of the statute, when a trial court determines that certain claims are subject to arbitration, it must stay the entire proceeding until those claims have been arbitrated, even though the action may involve both arbitrable and non-arbitrable claims. The statute does not appear to confer any discretion to the trial court regarding the stay."). Several districts conclude that dismissal of a case is proper where all of the claims are referred to arbitration. See, e.g., Hermes v. Prudential Ins, and Financial Servs., 109 Ohio App.3d 309, 311, 671 N.E.2d 1384 (12th Dist.1996) ("if there are no issues pending that are not referable to arbitration then the case may be dismissed in its entirety by the trial court."). {¶40} This District has decided in favor of staying the trial court proceedings. In Taylor Winfield Corp. v. Winner Steel, Inc., 7th Dist. No. 05MA191, 2006-Ohio-4608, ¶ 14, we held that the trial court should have stayed proceedings pending arbitration, rather than dismissing for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1). Id. The only caveat with relying on this case to conclude dismissal is not permitted, is that procedurally, the case arose pursuant to a motion to dismiss for lack of subject matter jurisdiction. However, it still stands for the proposition that a stay, rather than dismissal, is the proper course, when the matter is referred to arbitration. The panel noted that "f there are issues in an action which are subject to arbitration, a party can move that the trial court stay trial and refer those issues to arbitration. This is the procedure which should have been followed in this case." Id. at ¶ 1. {¶41} Further, there are valid policy reasons supporting staying the case rather than dismissing it. R.C. 2711.06 covers subpoenas of witnesses for arbitration proceedings and provides, in pertinent part: {¶42} The statute permits the parties to return to the trial court during the course of arbitration to resolve some disputes. Then, after an arbitration award is rendered, a party is entitled to seek an order from the common pleas court confirming, vacating or modifying the award. R.C. 2711.09-2711.14. If the plaintiff's case is dismissed pending arbitration rather than stayed, the parties would in theory have to file a new action each time the common pleas court's assistance is required, with the attendant risk of having their case assigned to a new judge. On the other hand, if the trial court enters a stay of the action and retains jurisdiction, then proceedings may be expedited, as the parties may simply return to the same judge presiding over the plaintiff's case. {¶43} Accordingly, Appellants' first assignment of error is meritorious; the trial court should have stayed the matter pending arbitration, rather than dismissing it.
  7. @MikeB35 IANAL. As I understand this section, the arbitrator and not the judge is to decide whether the costs of consumer-related arbitration to PRA are unconscionable: "Arbitration. Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entireAgreement), or the relationships which result from this Agreement (“Claim”) shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules and procedures of the arbitration administrator (including any applicable procedures for consumer-related disputes) in effect at the time the Claim is filed. . . .The arbitrator shall have the sole and exclusive authority to resolve any dispute relating to the enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the Agreement or the arbitration provision is void, voidable, or otherwise invalid. "
  8. @MikeB35 I was just trying to reread your previous LVNV stuff. In that one you had to file a motion for leave to file the reply. Is that still the case?
  9. @MikeB35 IMO (IANAL) You need to refute/rebut their main arguments with actual citations from the agreement to demonstrate how they're misquoting or misreading the arb clause's terms. Further, you should back up your position with cites from precedential case rulings.
  10. When do plan to have this reply in its final form?
  11. So, it's due to be filed and served on April 22?
  12. I would not attest to this. They submitted this copy and they claim it is the applicable contract. Seven days from when? What date is it due?
  13. @MikeB35 They weren't required to contact you, but could have, once you noticed them in your answer about electing arb. When is the deadline to submit this reply to the court?
  14. Under the terms of the contract's arb section, the party initially requesting arbitration (you) shall (must) select JAMS or AAA. You did not do this. PRA was notified when it received your answer with affimative defenses of your election to arbitrate the disputes and claims of their complaint. PRA did not contact you to discuss arb or a forum selection. Their defense is weak IMO, but they're giving it a shot.
  15. @MikeB35 In the Response the attorney quotes a section of the arb agreement, with bold emphasis on this statement: "The party initially requesting arbitration SHALL SELECT either the American Arbitration Association (“AAA”) or JAMS (originally, Judicial Arbitration and Mediation Services) as the arbitration administrator..." The attorney conveniently leaves out the next sentence which reads: "You may change the selection to the other organization listed within 30 days after you receive notice of an election to arbitrate." Nothing in that arb section requires you to file a claim demand with an arbitral forum, only that you select one--which may be changed within 30 days after you recieve notice of an election to arbitrate. Did you indicate that you "selected" JAMS or AAA in your affirmative defense or in your motion? Merriam-Webster defines "select" as follows: select verb selected; selecting; selects Definition of select (Entry 2 of 3) transitive verb : to choose (as by fitness or excellence) from a number or group : pick out intransitive verb : to make a choice