Brotherskeeper

Moderators
  • Content Count

    2,846
  • Joined

  • Last visited

  • Days Won

    93

Everything posted by Brotherskeeper

  1. @WonderingInWI I don't know if this would work or not. You might research judicial notice rules and how to formally request it. https://docs.legis.wisconsin.gov/statutes/statutes/902.pdf You may be able to request the magistrate take judicial notice of the fact that arbitration has been granted in your court, without him using the ruling as the fact. See if you can request a certified copy of the judge's decision in your appealed case from your court. While the court may not technically be able to take notice of the ruling itself under these rules, once the magistrate reads it, it's hard to unring the bell. He'll see that he was overruled without you having to say so in open court. Just my thoughts to explore the possibility. (IANAL)
  2. Perhaps this is a very dumb question, but is there any option when the motion is titled "MTCA and Dismiss, or in the Alternative, Stay Proceedings Pending Arbitration" and the Stay part is granted? Is there anything you can go back to court with? Just spitballing here.
  3. Here's an example of a Florida motion for a final default judgment under rule 1.500: http://www.floridaconservator.com/wp-content/uploads/2013/03/08.25.14-Motion-For-Default-Final-Judgment-Against-Defendant-Gregg-Wallick.pdf
  4. @SHELLY7 @SJULawAlum At last! Congrats to both of you!! This one was sweet.
  5. I just wanted to repost this so you see that MCR 2.116 (G)(a)(iii) permits you, without leave of the court, to file a reply brief. MikeB35 is under Ohio rules which require a motion for leave to file a reply.
  6. @arbitration or chapter 7 These are their Response Brief arguments: 1.) Defendant failed to take affirmative steps to engage in arbitration. 2.) Defendant has taken action inconsistent with the arbitration clause. 3.) In response to the Complaint, Defendant should have filed an arbitration in an arbitration forum to start the arbitration. 4.) This is what is required to preserve Defendant's claim to arbitration. 5.) Defendant's failure to timely file arbitration caused Plaintiff prejudice. 6.) Plaintiff is also prejudiced by the threat of having to litigate the case twice in 2 different forums at the same time. 7.) Defendant has waived his right to compel arbitration. 8.) Defendant has elected litigation in District Court rather than arbitration. 9.) Defendant is now barred by an estoppel argument.
  7. @arbitration or chapter 7 Plaintiff states, "Defendant is not permitted to pursue actions in two different forums simultaneously, and Plaintiff has been prejudiced as a result of the threat of having to litigate the case twice in two different forums at the same time." (Pl's. Br.) Defendant is not pursuing actions in two different forums simultaneously. Defendant was served a Summons and Complaint filed by Plaintiff. Defendant did not "elect litigation in District court." (Pl's. Br.) Defendant was required to file his Answer to Plaintiff's Complaint in order to avoid a default judgment. Notwithstanding a.) his Answer's arbitration as Affirmative Defense 1, b.) his arbitration election notice to Plaintiff requesting Plaintiff "dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration," and c.) the attached Proposed Order to stipulate to Defendant's Motion served prior to the Motion's filing, 9 U.S. Code § 3 requires a stay of the trial action pending 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." (emphasis added). Plaintiff is under no such threat of having to litigate this case twice "at the same time" if this Court grants this Motion. (Pl's. Br.)
  8. @september It sounds like you've been through a lot. In order to get some of your questions answered by members, it would be helpful for you to provide some specific information. You haven't been sued yet, correct? (Midland can't take any of the actions you're worried about without a judge's order.) Is this a credit card debt for $8K? If yes, which credit card? If no, who is the original creditor? Is this account in your name only? When was the last time you paid on this account? Until you can get some of your questions answered, I would not admit or confirm any information regarding the account to anyone on the phone. Please take some time to understand your options before you take any action.
  9. "There is no showing on these facts that defendants have at any time acted inconsistently with their claim of right to arbitration. Rush v Oppenheimer & Co, 779 F2d 885 (CA 2, 1985). We believe any prejudice suffered by plaintiff in terms of time and expense, although unfortunate, was self-inflicted. Fisher, p 698. Plaintiff chose the forum in violation of his agreement to arbitrate disputes. The strong federal policy in favor of enforcing arbitration agreements in transactions affecting commerce requires the conclusion that defendants did not waive their right to arbitration." Kauffman v Chicago Corp, 187 Mich App 284, 292; 466 NW2d 726 (1991).(citing Fisher v A G Becker Paribas Inc, 791 F2d 691, 698 (CA 9, 1986)).
  10. 2016 Michigan Supreme Court ruling: Altobelli v Hartmann, 499 Mich 284, 294-295; 884 NW2d 537 (2016). "Arbitration is a matter of contract." Kaleva-Norman-Dickson Sch. Dist. No. 6 v. Kaleva-Norman-Dickson Sch. Teachers' a$$'n, 393 Mich. 583, 587, 227 N.W.2d 500 (1975). Accordingly, when interpreting an arbitration agreement, we apply the same legal principles that govern contract interpretation. See F.J. Siller & Co. v. City of Hart, 400 Mich. 578, 581, 255 N.W.2d 347 (1977). Our primary task is to ascertain the intent of the parties at the time they entered into the agreement, which we determine by examining the language of the agreement according to its plain and ordinary meaning. See Miller-Davis Co. v. Ahrens Constr., Inc., 495 Mich. 161, 174, 848 N.W.2d 95 (2014)."
  11. RULE 3. Commencement of Action; Venue (C) Venue: where proper. Any action may be venued, commenced, and decided in any court in any county. When applied to county and municipal courts, “county,” as used in this rule, shall be construed, where appropriate, as the territorial limits of those courts. Proper venue lies in any one or more of the following counties: (1) The county in which the defendant resides; (2) The county in which the defendant has his or her principal place of business; (3) A county in which the defendant conducted activity that gave rise to the claim for relief; (4) A county in which a public officer maintains his or her principal office if suit is brought against the officer in the officer’s official capacity; (5) A county in which the property, or any part of the property, is situated if the subject of the action is real property or tangible personal property; (6) The county in which all or part of the claim for relief arose; or, if the claim for relief arose upon a river, other watercourse, or a road, that is the boundary of the state, or of two or more counties, in any county bordering on the river, watercourse, or road, and opposite to the place where the claim for relief arose; (7) In actions described in Civ.R. 4.3, in the county where plaintiff resides; (8) In an action against an executor, administrator, guardian, or trustee, in the county in which the executor, administrator, guardian, or trustee was appointed; (9) In actions for divorce, annulment, or legal separation, in the county in which the plaintiff is and has been a resident for at least ninety days immediately preceding the filing of the complaint; (10) In actions for a civil protection order, in the county in which the petitioner currently or temporarily resides; (11) In tort actions involving asbestos claims, silicosis claims, or mixed dust disease claims, only in the county in which all of the exposed plaintiffs reside, a county where all of the exposed plaintiffs were exposed to asbestos, silica, or mixed dust, or the county in which the defendant has his or her principal place of business. (12) If there is no available forum in divisions (C)(1) to (C)(10) of this rule, in the county in which plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity; (13) If there is no available forum in divisions (C)(1) to (C)(11) of this rule: (a) In a county in which defendant has property or debts owing to the defendant subject to attachment or garnishment; (b) In a county in which defendant has appointed an agent to receive service of process or in which an agent has been appointed by operation of law [snip] (E) Venue: no proper forum in Ohio. When a court, upon motion of any party or upon its own motion, determines: (1) that the county in which the action is brought is not a proper forum; (2) that there is no other proper forum for trial within this state; and (3) that there exists a proper forum for trial in another jurisdiction outside this state, the court shall stay the action upon condition that all defendants consent to the jurisdiction, waive venue, and agree that the date of commencement of the action in Ohio shall be the date of commencement for the application of the statute of limitations to the action in that forum in another jurisdiction which the court deems to be the proper forum. If all defendants agree to the conditions, the court shall not dismiss the action, but the action shall be stayed until the court receives notice by affidavit that plaintiff has recommenced the action in the out-of-state forum within sixty days after the effective date of the order staying the original action. If the plaintiff fails to recommence the action in the out-of-state forum within the sixty day period, the court shall dismiss the action without prejudice. If all defendants do not agree to or comply with the conditions, the court shall hear the action. If the court determines that a proper forum does not exist in another jurisdiction, it shall hear the action.
  12. @arbitration or chapter 7 Here's the first case they cite in their response. It won't shock you to learn it doesn't support their waiver argument in your case: Hurley v. Deutsche Bank Trust Co. Ams., 610 F.3d 334, 339 (6th Cir. 2010). '"This Court examines arbitration language in a contract in light of the strong federal policy in favor of arbitration, resolving any doubts as to the parties' intentions in favor of arbitration." Id. (citing Great Earth Cos., Inc. v. Simons, 288 F.3d 878 (6th Cir.2002)). Because of the presumption in favor of arbitration under the Federal Arbitration Act,[2] we will not lightly infer a party's waiver of its right to arbitration. O.J. Distrib., Inc. v. Hornell Brewing Co., 340 F.3d 345, 355 (6th Cir. 2003) (quoting Cotton v. Slone, 4 F.3d 176, 179 (2d Cir.1993)). However, a party may waive an agreement to arbitrate by engaging in two courses of conduct: (1) taking actions that are completely inconsistent with any reliance on an arbitration agreement; and (2) "delaying its assertion to such an extent that the opposing party incurs actual prejudice." Id. at 356 (quoting Germany v. River Terminal Ry. Co., 477 F.2d 546, 547 (6th Cir.1973) (per curiam) and citing Doctor's Assocs., Inc. v. Distajo, 107 F.3d 126, 131 (2d Cir.1997)); see also Manasher v. NECC Telecom, 310 Fed.Appx. 804, 806 (6th Cir.2009); Gen. Star Nat'l Ins. Co. v. Administratia Asigurarilor de Stat, 289 F.3d 434, 438 (6th Cir.2002). 339 We find that both factors indicating waiver are present in this case. With regard to the first factor, Defendants have taken actions that are completely inconsistent with any reliance on an arbitration agreement. Over the course of more than two years between when Plaintiffs initiated this lawsuit and when Defendants submitted their motion to compel arbitration, Defendants have consistently and actively litigated this action in court. See Manasher, 310 Fed.Appx. at 806 (holding that the defendant had waived its right to arbitrate "by actively participating in litigation for 339*339 almost a year without asserting that it had a right to arbitration"). Defendants have not only responded to actions taken by Plaintiffs, but they have filed multiple dispositive and non-dispositive motions of their own, including motions to dismiss, motions for summary judgment, and a motion to change venue. By filing a motion to change venue, Defendants proactively selected the forum in which they wished to defend against Plaintiffs' claims. As the district court found: (Dist. Ct. R.E. 189 at 3-4). In three recent cases, we have held that each defendant waived its right to arbitrate by failing to assert that right in a timely fashion and instead participating in litigation-related activities. In General Star National Insurance Co. v. Administratia Asigurarilor de Stat, this Court held that the defendant waived its right to arbitrate after waiting 17 months before attempting to enforce the arbitration clause. 289 F.3d at 438. The defendant was asserting its purported right to arbitrate in the context of moving to set aside the default judgment that had been entered against the defendant for failing to respond to the complaint. In finding that the defendant had waived its right to arbitrate, we noted that "for 17 months, [the defendant] remained idle while [the plaintiff] incurred the costs associated with this action. [The defendant], moreover, sought arbitration only after the district court had entered a default judgment against it." Id. In O.J. Distributing, Inc. v. Hornell Brewing Co., this Court held that the defendant waived its right to arbitrate by engaging in negotiations with the plaintiff for approximately 15 months — while at the same time denying the existence of the agreement which contained the arbitration provision — before asserting its right to arbitrate. 340 F.3d at 357. See also Manasher, 310 Fed.Appx. at 806 (holding that the defendant had waived its right to arbitrate by engaging in discovery and motion practice for a year before filing a motion to compel arbitration). In the instant case, Defendants have waited even longer than the defendants in each of those three cases to assert their purported right to arbitrate and have engaged in significantly more dispositive motion practice and litigation-related activities. Likewise, Defendants did not attempt to enforce their arbitration rights until after the district court entered an unfavorable decision. Cf. Rush v. Oppenheimer & Co., 779 F.2d 885, 890 (2d Cir. 1985) (holding that the defendant had not waived its arbitration right in part because "[t]his is not an instance in which `a party sensing an adverse court decision [is, in effect, allowed] a second chance in another forum'")." [snip] "With regard to the second factor, Defendants have delayed asserting their right to arbitrate to such an extent that they have actually prejudiced Plaintiffs. For more than two years before Defendants attempted to compel arbitration, Plaintiffs incurred the costs of active litigation in two federal courts. Plaintiffs have employed four attorneys, undergone extensive discovery, argued four summary judgment motions, and been subjected to a change in venue at Defendants' request. See Doctor's Assocs., 107 F.3d at 131 (recognizing that a party waives the right to arbitrate when it delays invoking that right such that the opposing party incurs "unnecessary delay or expense")."
  13. @arbitration or chapter 7 I don't remember if you've seen this or not, but it is a good overview of this topic: Compelling and Staying Arbitration in Michigan Michigan public policy favors arbitration. When considering an application to compel or stay arbitration, Michgan courts generally place the burden on the party seeking to avoid arbitration, not the party seeking to arbitrate (see Altobelli v. Hartmann, 884 N.W.2d 537, 543, reh’g denied, 881 N.W.2d 474 (2016), and cert. denied, 137 S. Ct. 580 (2016) (citing McKinstry v. Valley Obstetrics–Gynecology Clinic, PC, 405 N.W.2d 88 (1987))). INTERSECTION OF THE FAA AND MICHIGAN LAW Because the FAA preempts state law only to the extent that state law contradicts federal law, the FAA does not prevent Michigan state courts from, among other things, applying state contract law to determine whether the parties have entered into an arbitration agreement (see Altobelli, 884 N.W.2d at 542-43 (applying Michigan contract law principles to determine scope of arbitration clause)). If an agreement falls under the FAA, the Michigan state courts apply the federal standard for arbitrability when determining whether to compel or stay arbitration, rather than evaluating these threshold questions under Michigan state law (see Southland v. Keating Corp., 465 U.S. 1, 12-13 (1984); SCOPE OF ARBITRATION AGREEMENT When interpreting an arbitration agreement, Michigan courts apply state contract principles to determine the parties’ intent based on the plain and ordinary meaning of the agreement’s language (see Altobelli, 884 N.W.2d at 542; Scodeller v. Compo, 2017 WL 2791452, at *2 (Mich. App. Jun. 27, 2017)). Waiver Michigan courts disfavor waiver of the contractual right to arbitrate (see Universal Academy v. Berkshire Dev., Inc., 2017 WL 2664789, at *5 (Mich. App. June 20, 2017); Madison Dist. Pub. Sch. v. Myers, 637 N.W.2d 526, 529 (2001)). A party resisting arbitration based on the other party’s alleged waiver bears a heavy burden of proof and must demonstrate the other party: Knew of its exiting right to arbitrate or compel arbitration. Acted inconsistently with the right to arbitrate. Caused prejudice to the party. (See Madison Dist., 637 N.W.2d at 529 (citing Burns v. Olde Discount Corp., 538 N.W.2d 686 (1995)).) A party may waive the right to arbitrate either: Explicitly, by affirmatively stating it will not arbitrate (see Nexteer Auto. Corp. v. Mando Am. Corp., 886 N.W.2d 906, 909 (2016), appeal denied, 891 N.W.2d 474 (2017), reconsideration denied, 894 N.W.2d 550 (Mich. 2017)). Implicitly, by engaging in court litigation (see Madison Dist., 637 N.W.2d at 529). The more actively a party participates in litigation, the greater the risk of implicitly waiving the right to arbitrate. A party may implicitly waive its right to arbitrate by failing to demand or assert the right to arbitration when the party, for example: Files pleadings in court. Engages in litigation discovery. (See Madison Dist., 637 N.W.2d at 529-30, 533.)
  14. Rule 2.116 Summary Disposition (G) Affidavits; Hearing. (1) Except as otherwise provided in this subrule, MCR 2.119 applies to motions brought under this rule. (a) Unless a different period is set by the court, (i) a written motion under this rule with supporting brief and any affidavits must be filed and served at least 21 days before the time set for the hearing, and (ii) any response to the motion (including brief and any affidavits) must be filed and served at least 7 days before the hearing. (iii) the moving party or parties may file a reply brief in support of the motion. Reply briefs must be confined to rebuttal of the arguments in the nonmoving party or parties’ response brief and must be limited to 5 pages. The reply brief must be filed and served at least 4 days before the hearing. (iv) no additional or supplemental briefs may be filed without leave of the court.
  15. @arbitration or chapter 7 IANAL. The complaint you posted appears to be a breach of contract cause of action. Paragraphs 6-9 allege elements of a breach of contract. An account stated cause of action alleges a statement for the balance claimed was sent and never disputed or paid. Typically, there's an affidavit the JDB files with the complaint. From the agreement you posted above: "Except as stated below, all claims are subject to arbitration, no matter what legal theory they're based on..." Whether the cause of action is breach of contract or account stated, the arbitration clause permits you to elect arb.
  16. Here is the clause from the cardholder agreement you posted above: "Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgment has been entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA." A trial has not even been scheduled yet, so it hasn't begun. A final judgment has not been entered. To choose arbitration, you may file a motion to compel arbitration, which you have done. Prior to filing the MTCA, you gave the plaintiff the opportunity to stipulate to arb and dismiss its court claims, which they declined to do by not responding to your request to stipulate to the proposed order and waive the hearing.
  17. No, pre-trial is not the same as the trial. JDB cases rarely go to trial. The JDB usually files a pre-trial dispositive motion--a motion for summary judgment called disposition in Michigan--which, if granted, rules that there are no material facts of the movant's claims in dispute and no trial is necessary. A motion to compel arbitration in your case is a pre-trial motion, the same as a motion to compel answers to discovery requests would be. (IANAL) I personally would not file the demand in arb before the motion hearing.
  18. Congrats! As we always say on this forum, if you're pleased with the outcome you've negotiated, it's a win. Now you can put this one behind you and move on to the next challenge. Thank you for the richly detailed post of your experience in court and with the opposing attorney. It will help the next pro se to be better prepared.
  19. @MikeB35 I know next to nothing about this, but here are 2 things I found that may or may not offer some insight: https://www.michigan.gov/documents/uia/155_-_Independent_Contractor_20-Factor_IRS_Test_Revised_01-08-13_408013_7.pdf https://www.fosterswift.com/communications-Employee-or-Independent-Contractor.html
  20. @snowmandi19 Here's an attorney's article on arbitration in Texas: https://www.jw.com/wp-content/uploads/2018/02/Enforcing-and-Avoiding-Arbitration-Clauses-2018.pdf Here's an example of an attorney-prepared Texas motion to compel arbitration and memorandum of law. This is much more than what is usually submitted by pro se defendants on this forum to be successful. Check the Texas threads here for modified for Texas versions Fisthardcheeses's basic template. https://static1.squarespace.com/static/510f4db1e4b0e3b888bdf0d2/t/513907b0e4b0f3422dd4b73e/1362692016487/Motion+to+Compel+Arbitration_Redacted.pdf
  21. Did you read Fist's pinned thread on arbitration?
  22. @texasbbj You may qualify for assistance by a senior or low income legal aid group. The public library may be a good place to do some research. Many attorneys will give a cursory consult without a fee. This is from the Midland Consumer Bill of Rights page, Hardship section I linked to. It appears you qualify. Why not call them to discuss? "Contact Us (800) 296-2657 -We suspend collection activities when a consumer is a direct victim of a natural or other catastrophic disaster. -We cease collection activities when we receive documentation indicating that the consumer’s only source of income is from exempt sources, such as Social Security or Supplemental Security Income benefits, and that the consumer has access to no other assets. We work with and are sensitive to consumers who encounter unforeseen circumstances, such as job loss." If you have the wherewithal to prepare a MTC arb and pay the filing fee, that's probably your best bet if you don't want to call Midland. You'll need to understand your court rules for how and when to file a motion, and whether you need to schedule a hearing for the motion. There are Texas threads here that have helpful info.