Brotherskeeper

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Everything posted by Brotherskeeper

  1. An arbitration provision is a matter of contract and the contracting parties' intent. It was the intent of the parties in your case that, "If any claim is advanced in 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 commencement of trial." Your judge can't rewrite the unambiguous term that the right to elect arbitration, while a claim is advancing in court, can be made at any time before commencement of trial.
  2. The attorney for Midland is concerned that you won't follow through with arbitration? Wait until his client gets the invoice from JAMS. Are you saying that the plaintiff's attorney stipulated to your motion and the judge will sign an order? It looks like the judge stayed the case and gave you 30 days to file a demand with JAMS. I don't know what it is called in your court, but after you file your claim demand with JAMS and get confirmation, you would file a status report or a notice with the court to show you have complied with the judge's order. Read the link @BV80 gave you on arbitration. It contains a wealth of good information and advice I think you did a great job!
  3. @cedric_86 "If any claim is advanced in 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 commencement of trial." That's what the contract says. However, the next clause of the arb provision talks about pursuing a claim in Justice of the Peace Court in Delaware or your state's equivalent court. Sorry, but I don't have time to reread this thread to find out if you are in small claims or not. MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 906 (Ind.2004). Whether the parties agreed to arbitrate any disputes is a matter of contract interpretation, and most importantly, a matter of the parties' intent. AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) ("As with any contract, the touchstone for interpreting an arbitration clause must be the intention of the parties."). "Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of the parties." Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128, 1129 (Ind.1998); Cont'l Basketball a$$'n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.1996). Consequently, imposing on parties a policy favoring arbitration before determining whether they agreed to arbitrate could frustrate the parties' intent and their freedom to contract. The Supreme Court has made this clear— "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quotations and citations omitted); accord Homes by Pate, Inc. v. DeHaan, 713 N.E.2d 303, 306 (Ind.Ct.App. 1999). Additionally, courts have regularly distinguished the treatment given questions of the existence of an agreement to arbitrate and questions of the scope of an agreed-to arbitration clause. In determining the scope of an arbitration agreement, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Volt, 489 U.S. at 476, 109 S.Ct. 1248; accord Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927; Bank One, 281 F.3d at 513-14 n. 24.[4] Because there was already an 907*907 agreed-to arbitration clause in these cases, applying federal policy in construing the arbitration clause would not have frustrated the parties' intent. Using the policy favoring arbitration to decide whether the parties did in fact agree to arbitrate does not answer the question but rather avoids having to decide it. Only after it has been determined that the parties agreed to arbitrate their disputes does the policy favoring arbitration play an important role. We must determine, therefore, whether MPACT and the Subcontractors agreed to arbitrate without resort to the federal policy favoring arbitration.
  4. Thank you for sharing your journey with this forum. It provided a lot of lively discussion. I'm sorry the outcome didn't go your way. ^^^This is indeed good news for consumers! Best of luck if you find a way to fight on.
  5. @Racinghart03 Here's a recent NJ Supreme Court decision: Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019). "In applying the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, the United States Supreme Court has provided substantial guidance on the question of whether arbitration should be compelled in situations such as we address in this case. The FAA constitutes the supreme law of the land regarding arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ("In enacting [section two of the FAA], Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration."). Reflecting the "fundamental principle that arbitration is a matter of contract," Rent-A-Center, 561 U.S. at 67, 130 S.Ct. 2772, section two of the FAA provides: Thus, Congress intended "to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). It is the FAA's "principal purpose" to "`ensur[e] that private arbitration agreements are enforced according to their terms.'" AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 344, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (alteration in original) (quoting Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). To make that so, the FAA provides remedies. First, section three provides that a party may request a stay of an in-court action of "any issue referable to arbitration under an agreement in writing for such arbitration." 9 U.S.C. § 3. And, section four provides a federal remedy for a party "aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration," and directs the federal court to order arbitration once it is satisfied that an agreement for arbitration has been made and has not been honored. 9 U.S.C. § 4. New Jersey case law acknowledges the preeminence of the national policy established by Congress through the FAA as well as the Supreme Court's holdings interpreting and implementing that policy. See, e.g., Morgan, 225 N.J. at 304-06, 137 A.3d 1168; Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85, 800 A.2d 872 (2002). Hence, in this matter, as in others, we look to the Supreme Court's decisions to guide us in the enforcement of arbitration agreements according to their terms. . . "
  6. The Michigan statute does not state a collection agency can't report a disputed debt. It states that a collection agency shall cease collection until verification is mailed to the consumer. Is a vet bill considered to be a medical debt? "(2) If the consumer notifies the collection agency in writing, within 30 days after receiving the written notice, that the debt, or any portion of the debt, is disputed, collection of the debt or any disputed portion of the debt shall cease until the collection agency obtains verification of the debt and a copy of the verification or judgment is mailed to the consumer by the collection agency. Verification of the debt or any disputed portion of the debt shall include the number and amount of previously made payments and the name and address of the orginal creditor, if different from the current creditor, or a copy of the judgment against the debtor." "Medical Debts Are Given a Grace Period: The three credit bureaus now wait 180 days before listing medical debt on your credit reports. This grace period gives you time to figure out payment options before the debt affects your credit scores. Medical Debts Are Removed Once Paid: While most collections remain on your credit report for seven years, medical debt is removed once it has been paid or is being paid by insurance. Unpaid medical debt in collections will still remain on your credit report for seven years from the original delinquency date." https://www.experian.com/blogs/ask-experian/can-medical-bills-affect-credit-report/
  7. No. It says, "(1) Within 5 days after the initial communication with a consumer in connection with a collection of a debt, a collection agency shall send the consumer, unless the following information is contained in the initial communication or the consumer has paid the debt, a written notice containing all of the following information: (a.) thru (e.)" Number 1 requires them to send written information within 5 days after their initial communication with you, unless the information in (1.)(a. - e.) is in their first communication with you. You are required to send your dispute or request for verification of the debt in writing within 30 days of receipt of their written notice. "collection of the debt or any disputed portion of the debt shall cease until the collection agency obtains verification of the debt and a copy of the verification or judgment is mailed to the consumer by the collection agency."
  8. @BV80 FYI--Michigan law requires that verification includes the number and amount of previously made payments: 339.918 Communication with consumer; notice; effect of disputing validity of debt; verification of debt; failure to dispute validity of debt. Sec. 918. (1) Within 5 days after the initial communication with a consumer in connection with a collection of a debt, a collection agency shall send the consumer, unless the following information is contained in the initial communication or the consumer has paid the debt, a written notice containing all of the following information: (a) The amount of the debt owed. (b) The date the communication was sent to the debtor. (c) The name of the creditor to whom the debt is owed. (d) A statement specifying that unless the consumer, within 30 days after receipt of this notice, disputes the validity of the debt, or a portion of the debt, the debt will be assumed to be valid. (e) A statement specifying that, if the consumer notifies the collection agency in writing within 30 days after receipt of this notice, that the debt, or any portion of the debt, is disputed, the collection agency shall obtain verification of the debt or a copy of a judgment against the consumer and that a copy of the verification or judgment shall be mailed to the consumer by the collection agency. (2) If the consumer notifies the collection agency in writing, within 30 days after receiving the written notice, that the debt, or any portion of the debt, is disputed, collection of the debt or any disputed portion of the debt shall cease until the collection agency obtains verification of the debt and a copy of the verification or judgment is mailed to the consumer by the collection agency. Verification of the debt or any disputed portion of the debt shall include the number and amount of previously made payments and the name and address of the orginal creditor, if different from the current creditor, or a copy of the judgment against the debtor. (3) The failure of a consumer to dispute the validity of a debt under this section shall not be construed as an admission of liability by the consumer.
  9. Check your rules for amended pleadings. RULE 15. Amended and Supplemental Pleadings (E) Supplemental pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
  10. https://www.jacksonlewis.com/sites/default/files/docs/Compelling and Staying Arbitration in Ohio.pdf Ohio rules: 2711.02 Court may stay trial.. (B) If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration. (C) Except as provided in division (D) of this section, an order under division (B) of this section that grants or denies a stay of a trial of any action pending arbitration, including, but not limited to, an order that is based upon a determination of the court that a party has waived arbitration under the arbitration agreement, is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code. Federal Arbitration Act: §3. Stay of proceedings where issue therein referable to arbitration If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. (July 30, 1947, ch. 392, 61 Stat. 670.) Derivation Act Feb. 12, 1925, ch. 213, §3, 43 Stat. 883. §4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof. (July 30, 1947, ch. 392, 61 Stat. 671; Sept. 3, 1954, ch. 1263, §19, 68 Stat. 1233.)
  11. @BV80 @Luvmybabas Here is another Virginia Supreme Court case that affirms a denied motion to compel and stay can be appealed. Midland's attorney argued that the Comenity agreement from the CFPB archived database, required under the Card Act of 2009, was just some agreement off of the Internet and that there was no arbitration in the correct agreement. The judge never asked where that agreement was or why it had not been provided. Bank of the Commonwealth v. Hudspeth, 282 Va. 216, 221, 714 S.E.2d 566, 569 (2011) "The circuit court found that there was no evidence of an express arbitration agreement between the parties, but explained that this finding "d[id] not end the inquiry" because arbitration may be imposed in the absence of an express agreement if the Bank was a "customer" under the Customer Code. The circuit court observed that determining whether the Bank was a "customer" for purposes of the Customer Code does not end at the conclusion that the Bank is not a dealer or broker, as the Bank asserted. Rather, the circuit court stated it would adopt a more "holistic point of view," finding that the "definition [of customer] within the [Customer] Code is a contextual one, and it must be fleshed out in individual cases with regard to the factual assertions being made in the individual case and the position of the parties in the case." The circuit court determined that the Bank was not a member of the "investing public," and held that it was not a "customer" for purposes of the Customer Code because the brokerage agreement established between BI Investments and the Bank established independent roles for each entity. Therefore, the circuit court denied the Bank's motions to stay and to compel arbitration. The Bank timely filed its notice of appeal[5] and we granted an appeal on the following assignment of error: # # # "The first duty of a court asked to compel arbitration of a dispute is to "determine whether the parties agreed to arbitrate that dispute," and when the arbitration agreement is within the coverage of the Federal Arbitration Act, as is conceded here, the court "is to make this determination by applying the `federal substantive law of arbitrability.'" Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). In 570*570 this case, the circuit court found, and the parties have not appealed from the ruling, that the parties have not entered into "an actual [arbitration] agreement." However, the United States Court of Appeals for the Fourth Circuit has recognized that "[t]he obligation and entitlement to arbitrate does not attach only to one who has personally signed the written arbitration provision. Rather, well-established common law principles dictate that in an appropriate case a nonsignatory can enforce, or be bound by, an arbitration provision within a contract executed by other parties." Washington Square Sec., Inc. v. Aune, 385 F.3d 432, 435 (4th Cir.2004) (internal quotation marks and citations omitted). Additionally, the United States Supreme Court has stated that, "in applying general state law principles of contract interpretation to the interpretation of an arbitration agreement within the scope of the [Federal Arbitration] Act, due regard must be given to the federal policy favoring arbitration." Volt Info. Sciences, Inc. v. Bd. of Trs. of Leland Stanford, Jr. Univ., 489 U.S. 468, 475-76, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989) (citation omitted)." "[5] Denial of a motion to compel arbitration is an appealable order under the provisions of Code § 8.01-581.016(1)."
  12. @Raybert Your pretrial statement is based on your Answer and their Complaint allegations.
  13. @BV80 For the sake of clarity: the actual (interlocutory) appeal of the denied District Court motion is heard de novo in the Circuit Court. The Notice of Appeal--Civil form DC-475 must be submitted to the District Court clerk and entered within 10 days of entry of the judge's signed order of the motion being appealed. The District Court clerk's office and a District Court judge determine writ tax and fees, with the judge determining if a bond must be posted. The District Court clerk forwards the case files to the Circuit Court. It was the Notice of Appeal-Civil form that the District Court clerk and her supervisor refused to accept because a judge they asked said OP could NOT appeal this motion as it was not a final order of judgment. The Circuit Court clerk by phone told OP that the DC-475 form had to be filed with the District Court.
  14. In this case, Lady Justice was the likely victim of an uninformed, or perhaps misinformed, dismssive, grouchy male judge.
  15. Yes, OP had these things. One attorney gave OP help with filling out the proper appeal form, but was out of the office today and couldn't offer any more help other than some referral attorneys.They, of course, asked why OP wanted to go to arb, the cost, yada yada yada. Other than an attorney walking in with authority the clerk would recognize, OP was not going to get this clerk to accept the form or even discuss it. The Circuit Court clerk said the appeal form has to be accepted and handled by the District Court clerk. Catch 22.
  16. This is not what happened--as I understand it. The clerk at first refused to accept the appeal form. OP asked for the supervisor. The supervisor went to ask a judge that was there. The judge told the supervisor that no appeal was possible because it wasn't a final order or judgment. That is the usual rule in Virginia. The appeal for a denied MTC is under Virginia's arbitration statute. And of course, FAA section 16. Once the judge told the supervisor no, the clerk refused to look at anything else OP brought to show the authority for the appeal form to be filed. OP brought the printed-out pages on appeals for a denied MTC from the 2020 General District Court manual! She would not even look at that and refused to accept the form. OP asked her to please just accept the form, because it could always be rejected by the Circuit Court if no appeal was possible. Clerk would not listen to anything further.
  17. @Raybert Please go back to the forum page and look for the green "Start new topic" button. This is a very old thread. You'll get better help if you start your own thread. Please post a copy of the Complaint (with personal ID info redacted) and a copy of your Answer (redacted) to the Complaint. Do you have a copy of the Fifth Third accountholder agreement?
  18. Did you call legal aid and ask? It's worth a try.
  19. But your appeal rules state the District Court must accept and process the appeal form, set the fee schedule and forward it to the Circuit Court clerk's office.
  20. Thanks, but OP did try to do that. That Circuit Court clerk's office is not open except by appointment. Reached by phone the Circuit Court clerk suggested to mail it to the District Court clerk. The problem is that clerk's office won't accept it. The Circuit Court clerk would not offer any other advice.
  21. @BV80 @fisthardcheese @WhoCares1000 @LaneBlane Even though a current Virginia statute (Va. Code § 8.01-581.016) allows an appeal on a denied motion to compel arb and stay the case, as well as FAA 9 U.S.C. § 16(a)(1), @Luvmybabas could not persuade the District Court clerk, her supervisor and a judge to agree that an interlocutory appeal on a denied MTC and stay is allowed. They all claimed only a final judgment can be appealed and the clerk refused to accept the appeal form. Tomorrow is the 10-day deadline for her to file an appeal and she will lose her right to do so. OP went today to show the clerk the laws, even pages from the current General District Court manual that descrbe this appeal, and a Virginia Supreme Court case that affirms her right. Any thoughts or suggestions would be helpful. https://www.beankinney.com/media/publication/390_Compelling and Staying Arbitration in Virginia _00986602xAC2B5_.pdf APPEALING AN ORDER TO COMPEL OR STAY ARBITRATION In federal court, federal law, such as the prohibition on interlocutory appeals (28 U.S.C. § 1291), the final judgment rule (28 U.S.C. § 1292), and the FAA (see Practice Note, Compelling and Enjoining Arbitration in US Federal Courts: Appealing an Order to Compel or Enjoin Arbitration (6-574-8707)) limit when a party may appeal an order compelling FAA-governed arbitration. An order granting or denying a request to compel arbitration is not considered a final judgment. Under the FAA, however, litigants may immediately appeal federal court orders denying arbitration, but not orders favorable to arbitration. US appellate courts therefore have jurisdiction over orders: Denying requests to compel and stay litigation pending arbitration (9 U.S.C. § 16(a)(1)). Granting, continuing, or modifying an injunction against an arbitration (9 U.S.C. § 16(a)(2)). Under the VUAA, like the FAA, a party may immediately appeal an order denying arbitration, but not an order favorable to arbitration. Therefore, a party may immediately appeal an order: Denying a request to compel arbitration. Granting an order to stay arbitration. (Va. Code § 8.01-581.016; see also Seguin v. Northrop Grumman Sys. Corp., 672 S.E.2d 877, 879 (Va. 2009)).
  22. Great news!! You got a happy ending. Congratulations.
  23. "Plaintiff also lobbed several insults and accusations at Defendants, which supports an inference that she sought to embarrass or annoy them. See Pl.'s Mot. 17, 18, 30, 31, ECF No. 32 (accusing Defendants of being unethical, allowing the filing of a false affidavit, "demonstrat[ing] an absolute willingness to corrupt their claims and misrepresent and deceive the court," and being "corrupt"); Pl.'s Reply 12, ECF No. 46 (stating that Defendants "are complete idiots" or acted "in bad faith," "do not take their obligation to tell the whole truth seriously," and "[h]id[e] behind unsustainable objections and us[e] half-truths to tell whole lies."). Plaintiff brought these claims in bad faith and for the purpose of harassment."