Brotherskeeper

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Everything posted by Brotherskeeper

  1. @treblclef20 I'm sorry but I'm not familiar enough with NY laws and rules enough to give advice here. I don't know whether an arbitration agreement must be stated as an affirmative defense in an answer or amended answer or it is likely waived. @MIOMH believes it is not waived. If you have not asserted arbitration as an affirmative defense, and have not sent a notice of intent to arbitrate the claims, how is Plaintiff to know you don't intend to remain in court to litigate? How can they be compelled to arbitrate a dispute when you haven't given any notice of it in your answer, or made a demand to arbitrate, and have sent extensive discovery production requests? How have they refused to arbitrate at this point? Under NY CPLRs, can you ask that they be compelled without first making a demand? I don't know. Has the plaintiff made a request (RJI) and paid to have a judge assigned? Asking plaintiff to stipulate to allowing an amended answer would solve the problem. I assume that filing a motion to amend your answer must follow the CPLR rules on motion practice. @usctrojanalum is our NY expert, but is very busy these days. I'm not trying to discourage you from pursuing arbitration, I just lack an understanding of what you should do. If you don't even try to get this kicked out of court and into arb, you can't possibly succeed, can you? If I were in your shoes, I'd try and let the judge tell me no. (IANAL!)
  2. No. (I am not a lawyer.) I believe you have to prepare an amended Answer and attach it to a motion to amend. @MIOMH is going to use arbitration without having amended his/her Answer to include arbitration as an affirmative defense. A notice of a demand for arbitration was sent to the Plaintiff debt buyer, with a copy sent to the Plaintiff's attorney. This NY (Suffolk County) thread has a sample of a motion to amend an Answer
  3. New York Consolidated Laws, Civil Practice Law and Rules - CVP - CVP NY CPLR Rule 3025 Rule 3025. Amended and supplemental pleadings (a) Amendments without leave.  A party may amend his pleading once without leave of court within twenty days after its service, or at any time before the period for responding to it expires, or within twenty days after service of a pleading responding to it. (b) Amendments and supplemental pleadings by leave.  A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties.  Leave shall be freely given upon such terms as may be just including the granting of costs and continuances.  Any motion to amend or supplement pleadings shall be accompanied by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading. (c) Amendment to conform to the evidence.  The court may permit pleadings to be amended before or after judgment to conform them to the evidence, upon such terms as may be just including the granting of costs and continuances. (d) Responses to amended or supplemental pleadings.  Except where otherwise prescribed by law or order of the court, there shall be an answer or reply to an amended or supplemental pleading if an answer or reply is required to the pleading being amended or supplemented.  Service of such an answer or reply shall be made within twenty days after service of the amended or supplemental pleading to which it responds. If you're in NYC, you may find some help here: https://www.nycourts.gov/COURTS/nyc/civil/representMenu.shtml
  4. You have several pieces of paper or written documents that are grouped together into an exhibit you've marked as Exhibit A. You are filing this Affidavit in support of your Motion to compel, to state facts made on your personal knowledge and as evidence establishing the grounds stated in your Motion. You refer to Exhibit A in your Affidavit, therefore you have to attach it as a "sworn" (aka true or true and correct copy) to your Affidavit. B. Affidavit (If Required) “An affidavit must be verified by oath or affirmation.” MCR 1.109(D)(1)(f). “If an affidavit is filed in support of or in opposition to a motion, it must: (a) be made on personal knowledge; (b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and (c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.” MCR 2.119(B)(1). An affidavit is valid if it is: “(1) a written or printed declaration or statement of facts, (2) voluntarily made, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Sherry v East Suburban Football League, 292 Mich App 23, 31 (2011). An affidavit lacking notarization is invalid, and a trial court may refuse to consider it sua sponte or on motion by a party. Id. All documents or parts of documents that are referred to in the affidavit must be attached to the affidavit as sworn or certified copies, unless the documents: “(a) have already been filed in the action; (b) are matters of public record in the county in which the action is pending; (c) are in the possession of the adverse party, and this fact is stated in the affidavit or motion; or (d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavit or the motion.” MCR 2.119(B)(2).
  5. If you want to keep this option open, and can file an amended answer without needing plaintiff's or the court's permission, what is the down side to filing "First Amended Answer" to include lack of subject matter jurisdiction due to an agreement to arbitrate in the contract? A fellow NY (Suffolk County) defendant used the following affirmative defenses in her Answer: AFFIRMATIVE DEFENSES 1. Lack of subject matter jurisdiction. The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction. 2. Failure to state a claim upon which relief may be granted. 3. Upon information and belief the Plaintiff is not in control of the necessary documents or witnesses needed to prove its claims. 4. Lack of standing.
  6. Did you find out if you're in NY's commercial small claims? In General "Anyone 18 years of age or over can sue in Small Claims Court. If you are younger than 18, your parent or guardian may sue on your behalf. Only an individual can sue in Small Claims Court. Corporations, partnerships, associations, or assignees cannot sue in Small Claims Court. However, they can be sued in Small Claims Court. If you are a corporation, partnership, association or assignee, you can bring a Commercial Claim or Consumer Transaction. For more information, click on Commercial Claims and Consumer Transactions. Can corporations and associations start a small claims case? "Corporations, associations, and assignees cannot start a small claims case. They must start a commercial small claims case. See page 23."
  7. Correct spelling is Interrogatory. Is there a reason you left out, "Any discovery requests are to be decided by the arbitration administrator according to the rules of the AAA arbitration forum."? You stated in an early post: "I chose the Answer (General Denial) and for defenses the only check box that seemed to apply was "I had no business dealings with Plaintiff"." It also reads: "(Plaintiff lacks standing)" after that statement. Lack of standing is listed as an affirmative defense on that form, although it just states, "Defenses." FYI--Even though you stated an objection to the interrogatories in general and to each specifically, you still may respond to certain ROGS, without waiving the objection. "Without waiving this objection, Defendant has..." This would be for any response that you can answer that can't implicate a waiver and is easily answered. (again FYI). (IANAL) To recap: You have generally denied each complaint allegation. This would include any allegation of being a party to a contract with the original creditor. You filed an Answer with lack of standing as an affirmative defense, but did not include arbitration as another defense. You don't intend to file a motion to amend your answer. Your research indicates this isn't necessary in order to avoid a waiver of the right under NY case law. You sent the NY CPLR rule-compliant demand for arb to both Plaintiff and the attorney, who now wants to know more from you regarding your claim. You have not filed your MTC yet. Fisthardcheese recommended you file a demand with AAA in his Aug.4 post. Did you do this?
  8. @tigerlily1 Here's the current Citibank list of branded agreements: https://www.consumerfinance.gov/credit-cards/agreements/issuer/citibank/ Here's the archived lists. If you know approximately when the last payment was or when the account was last in good standing, you look in that year by quarter, then find the Citibank agreements in that file: https://www.consumerfinance.gov/credit-cards/agreements/
  9. @WonderingInWI There's a discussion about this in this Wisconsin thread:
  10. You're most welcome. Listen, you're being tasked with learning a whole new skill set in a whole new language under duress with high stakes. If you don't ask, you might make a mistake and not even know it until it's too late. Your thread will contain a lot of information to help the next poor deer in the headlights soul who finds his/her way to this forum. Thank you. My participation on this forum began as way to "pay it forward," and I encourage everyone here who gets a helping hand during a difficult time to do the same in any way they choose. A little unexpected kindness can be a powerful thing.
  11. After you get the the MTCA hearing date and time scheduled with the clerk, you will fill in that info on the Notice of Motion and Hearing, including the certificate of service to Plaintiff. (The court requires you to serve Plaintiff copies of everything you file with it, and swear that you did so.) The original Notice of Motion and Hearing that you file with the court clerk will have attachments: 1.) actual Motion to compel arbitration with your "wet ink" signature, 2.) original "wet ink" signed/notarized Affidavit of Want2bclear, 3.) "Exhibit A" documents, including a color photocopy of the CMRRR signed receipt, and 4.) the signed certificate of service (which may in your case be at the bottom of the Notice/Hearing form). Photocopies of the above items (the Notice of Motion and Hearing with all attachments) will be mailed to the Plaintiff on the date and by the method sworn to on the certificate of service. If the judge requires his/her own copy, then photocopies of everthing filed with the court go to the judge, marked "judge's copy" on it. Another set of photocopies of everything filed with the court and stamped by clerk and/or sent to the Plaintiff are for your files. I would make a photocopy of the addressed, stamped envelope that you mail the Plaintiff's copy in. Does this answer your question?
  12. Yes, affidavits are signed, or sworn to and signed, in the presence of a notary, and then the notary signs and/or affixes the seal if required. Yes, a copy of the original (signed, notarized) affidavit goes to Plaintiff, then the original with the proof of service to Plaintiff gets filed with the court. Sorry, I posted my latest before I read your most recent post. Call the clerk, or ask the clerk when you schedule the MTC hearing time and date if your judge wants a "judge's copy" before you waste the paper. Remember to make copies of everything sent to Plaintiff and submitted to court for your own files No, the court does not label your exhibits, you do. The "Exhibit A" cover sheet that you posted is fine. It's also acceptable to hand write it in at the top or bottom right corner of the first page, but your cover sheet stapled to the entire contents of Exhibit A looks more professional IMO. Law firms use digital exhibit labels for electronic filings or an old-fashioned exhibit ink stamp and pad or a printed exhibit label sticker, but some use the cover sheet as you have. You need to get on the court's schedule for motion hearings. Some judges have specific days for hearings. The Notice is to let the Plaintiff know what kind motion is being heard and the date, time and location of the hearing. Attaching the actual MTCA to the Notice of Motion and Hearing is allowed by MCR 2.119. At the bottom of the court form (shown below) it states first-class mail, so first-class mail must be an accepted method. If you sign this you are certifying (swearing) that you sent it by the method stated in the certificate of mailing. If you sent it by another method, like CMRRR, you must change the wording and then swear (certify) to that. (IANAL) I know of no requirement that the notice of motion and hearing be served CMRRR. Please reread the MCR 2.119 motion practice rules I posted previously to make certain you're compliant with them. CERTIFICATE OF MAILING I certify that on this date I served a copy of this notice of hearing and motion on the parties or their attorneys by first-class mail addressed to their last-known addresses as defined by MCR 2.107(C)(3). (IANAL) As I mentioned in a prior post, I believe you can fill-in the "Motion" section with something like, "See the attached Motion, Affidavit and Exhibit A," or "See the attached Motion to Compel Arbitration, Affidavit and Exhibit A." The form has a place for the Motion Title: Motion to Compel Private/Contractual Arbitration and Dismiss,or in the Alternative, to Stay the Proceedings Pending Arbitration. Moving Party: Defendant pro se, Want2beclear.
  13. Just wanted to make sure that you send Plaintiff and file a Notice of Hearing and Motion. Also, ask the clerk if your judge requires a separate "Judge's Copy" of all of the MTC motion papers that you file with the court.
  14. @Want2beclear It's probably super nitpicky, but the first time you cite an exhibit or pleading, you don't abbreviate it; after the first full mention, you can abbreviate it. Once you start using abbreviations, you should use them consistently. Example: (Defendant's Answer, Affirmative Defense I), then abbreviated as (Def.'s Answer., Aff. Def. I); (Plaintiff's Complaint Exhibit, pages 2-4.), then abbreviated as (Pl.'s Compl. Ex., pp 2-4). In the MTCA at ¶ 2, you've created a hybrid: (Defendant's Answer, Aff. Def. I). Since it's the first use, it should read (Defendant's Answer, Affirmative Defense I). In the MTCA at ¶ 3, I would capitalize the "a" in Affidavit of Want2bclear. http://www.personal.psu.edu/dhk3/research/Bluebook/T-08-17.htm http://www.personal.psu.edu/dhk3/research/Bluebook/T-16.htm
  15. @Want2beclear (IANAL) I would delete the ("the Agreement") in the Now Comes paragraph as shown below. Keep paragraph 1 as is, with ("the Agreement") appearing for the first time. NOW COMES XXXXX, Defendant pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT," pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following: 1. Defendant was personally served with the Summons and Complaint in the above-captioned matter on July 23, 2019. Plaintiff alleges, "as assignee of Synchrony Bank," that an account with "Synchrony Bank/Sam's Club" belonging to Defendant was "transferred, sold and/or assigned" to Plaintiff. Attached as a Complaint exhibit is a “SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT,” ("the Agreement"), that Plaintiff asserts is the contract that governs the subject account. "Section III: Standard Provisions" of this Agreement contains a binding Arbitration provision (Plaintiff’s Complaint Exhibit, pages 2-4), incorporated herein by reference.
  16. @hsakee Welcome. Here is a current Express Next card agreement's arbitration clause. We need to find one from 2017 when the account was last in good standing to compare. Have you read the pinned thread on arbitration by fisthardcheese? Doing so will give you an understanding of what the arbitration strategy is. EXPRESS NEXT Credit Card account, Comenity Bank C. Arbitration provision READ THIS PROVISION CAREFULLY. IF YOU DO NOT REJECT IT IN ACCORDANCE WITH PARAGRAPH C.1. BELOW, IT WILL BE PART OF THIS AGREEMENT AND WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE. Right to Reject: If you don't want this Arbitration Provision (and any prior arbitration agreement between you and us ("Prior Arbitration Agreement")) to apply, you may reject it by mailing us a written rejection notice which gives your name and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at Comenity Bank, PO Box 182422, Columbus, Ohio 43218-2422. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within 30 calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit. Parties: Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank and its successors and/or assigns, as well as any parent, subsidiary or affiliate of theirs and their employees, officers and directors (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party. Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, and/or any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 ("Class Action Waiver"), Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state's equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration. Choosing the Administrator: "Administrator" means the American Arbitration Association ("AAA"), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org ; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com ; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. Prohibition Against Certain Proceedings (Class Action Waiver): IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION. Location and Costs: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys' and experts' fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to. Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the "FAA"), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award. Discovery: In addition to the parties' rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request. Result and Appeals: Judgment upon the arbitrator's award may be entered by any court having jurisdiction. The arbitrator's decision is final and binding, except for any right of appeal provided by the FAA and/or the rules of the Administrator. Any finding, award or judgment from an arbitration of any Claim shall apply only to that arbitration. No finding, award or judgment from any other arbitration shall impact the arbitration of any Claim. Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision and the applicable arbitration rules or the other provisions of this Agreement, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement. Severability: If any portion of this Arbitration Provision is held to be invalid or unenforceable, the remaining portions shall nevertheless remain in force, subject to two exceptions. First, if a determination is made that the Class Action Waiver is unenforceable, and that determination is not reversed on appeal, then the Arbitration Provision shall be void in its entirety. Second, if a court determines that a public injunctive relief Claim may proceed notwithstanding the Class Action Waiver, and that determination is not reversed on appeal, then the public injunctive relief Claim will be decided by a court, any individual Claims will be arbitrated and the parties will ask the court to stay the public injunctive relief Claim until the other Claims have been finally concluded. Special Payment: If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request before an arbitrator is appointed; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled).
  17. Correction #1 Your Motion states: "3. Defendant sent a letter via USPS Certified Mail Return Receipt Requested to Plaintiff’s attorney on August 2, 2019, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration. A copy of the Proposed Order for this Motion was enclosed with the Defendant’s arbitration election notice. A true copy of the written election notice, Proposed Order and signed Return Receipt are attached to the affidavit of XXXXX as Defendant’s Exhibit B." But, your Affidavit states: "A true copy of the Notice of Arbitration Election letter, Proposed Order, and the CMRRR signed receipt are attached as Exhibit A." I don't think you have an Exhibit B. Correction #2. MTCA--I think this should read AT&T Mobility L.L.C. v. Concepcion, rather than Mobility in all caps: "6. The Supreme Court emphasized in its decision in AT&T MOBILITY L.L.C. 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." Correction #3. I noticed a typo in paragraph 6: 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 StoltNielsen S.A. v. AninalFeeds Int’l Corp., 559 U.S.___, ___ (2010) (slip op., at 17). This purpose..." The correct case cite taken from the decision reads: Stolt-Nielson S.A. v. AnimalFeeds Int'l Corp as shown below: see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17).
  18. You wrote: "NOW COMES XXXXX, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank Card Agreement, ("the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following:" You are either a Defendant pro se, or a Defendant in propria persona (in pro per), but not "in pro se." (IANAL) I suggested you add "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT" after "Synchrony Bank" because that's the name on the agreement Plaintiff said is the contract.
  19. This is not a mistake. They get the original signed letter. You were to make copies of the signed original before mailing it. OK. The letter is identical to the one sent; you signed your copy after the original was mailed. (IANAL) I would drop the "true and correct" in favor of a true copy. Here's the Black's Law definition of a true copy for you to consider: TRUE COPY THELAW.COM LAW DICTIONARY & BLACK'S LAW DICTIONARY 2ND ED. A faithful duplicate of an original document that is virtually identical and sufficient for its purposes to act as one. Exactly right. You're about to file a very important motion in court before a judge.
  20. Yes. Plaintiff's Complaint Exhibit, pages 3-6, or page 3. (or note whatever page the specific info is found on.) An abreviation may be used after the first use: Pl.'s Comp. Ex., pp. 3-6, or pg. 3. (IANAL) If you feel it is too confusing for the judge because Plaintiff failed to mark the separate docs by letter/number, you may attach their Sam's Club copy with the arbitration clause bracketed with a highlighter pen along the margin, not on top of the actual text, which I know is hard to read. You could then state, (see Pl's Comp. Ex., attached with highlighted text.)
  21. @Want2beclear You've got a few mistakes in ¶ 7: "7. The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580. Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established. There is a written arbitration clause that is part of a valid written contract. The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "How Arbitration Works" section. (Plaintiff’s Exhibit, pp 10-11)." [Correction: . . . as permitted in the Agreement's "How to start an arbitration, and the arbitration process" section. (Pl.'s Comp. Ex., pg. 3).] Here's the language from the Sam's Club Agreements, page 3, you linked to in your posts: "• How to start an arbitration, and the arbitration process 1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator. 2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding. . . ."
  22. @Want2beclear Please proofread your cut and pasted motion to accurately quote the Sam's Club agreement. Understand that the examples of documents that other posters submit are only a starting point for you to modify to your specific case. You do your credibilty real damage if you submit obviously incorrect quotations, incorrect page citations, incorrect terminology, etc. BTW--once you indicate that Synchrony Sam's Club is to be referred to as ("the Agreement"), then you use the Agreement to mean the Synchrony Sam's Club Agreement. You don't then start using the "Card" Agreement. It's also the Agreement's Arbitration clause or provision or section. The 2 linked to copies of the Sam's Club agreement state the following: "RESOLVING A DISPUTE WITH ARBITRATION PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. • What claims are subject to arbitration 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club, if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide." Your MTC incorrectly quotes the Agreement as stating: "5. The parties are bound by the Card Agreement. The Arbitration Agreement states among other things: a. Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”)." [Correct quote: "1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club, if it relates to your account, except as noted below."] Where in the Sam's Club Agreement is this language?: b. All claims relating to your account, a prior related account, or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision. c. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; and Claims made independently or with other claims. d. We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt. e. Claims arising in the past, present, or future, including Claims arising before the opening of your account, are subject to arbitration.
  23. @Want2beclear (IANAL) I don't believe you're also motioning to dismiss, but motioning to compel arb and dismiss, or motioning to compel arb and stay as the alternative. MCR 2.116 applies to summary disposition motions (aka summary judgment or MSJ in other states); MCR 2.116(C)(7) is a MSJ, based on the grounds that the affirmative defense of the arb clause bars the claim, which can result in a dismissal if granted. The FAA requires a stay pending arbitration if the MTC is granted. fisthardcheese prefers a stay to a dismissal (without prejudice) be granted because a stay gives you leverage to go back to court if the plaintiff refuses to arbitrate in violation of the court order to do so. Here on this forum, it appears that most Michigan judges grant the MTC and stay the case, but some judges have dismissed, too. You titled this: "DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION" DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES XXXXX, Defendant pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT, pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following: