Brotherskeeper

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Everything posted by Brotherskeeper

  1. @MJGmuks I don't know if this applies to your court or not. 9. PROCEEDINGS STRICKEN/CANCELED
  2. @Jackie1989 Connecticut Code of Evidence Sec. 8-2 ARTICLE VIII—HEARSAY
  3. @BitsyM FYI https://krebsonsecurity.com/2014/01/hackers-steal-card-data-from-neiman-marcus/comment-page-1/
  4. It also helps refine our nascent skills to craft persuasive argument.
  5. If this JDB's collection agency complies with Michigan's debt verification requirements, perhaps BitsyM will receive copies of monthly account statements from the 2012-2014 period showing any charges or payments, before she has to make a decision on using arb. If they don't provide the number and amount of previously made payments in their verification response, she's at least racked up a Michigan violation. (IANAL)
  6. If you include the MCL 339.918(2) requirement, you may get a better idea of how much account info this JDB has. If they don't provide the above information, they haven't verified the debt under Michigan law. (IANAL)
  7. Okay, thank you. I stand corrected. I think I confused this with a card with the small claims exception to arb. Sorry. So, if BitsyM can't argue that the 2012 Capital One backed Neiman's agreement with the arb clause in it (as posted above) is the applicable agreement, then arb is off of the table?
  8. Good. You have no recollection of receiving any changes to the contract that would preclude arbitration. If you don't mind my asking, what state were you living in when the Neiman's account was opened? Where were you living when the last payment was made? Looking to see if another state's statute of limitations might have expired before Michigan became your legal domicile.
  9. @BitsyM Here are some interesting snippets from the agreement you posted. Do you recall getting any advance notice for a change of terms in the Neiman's account agreement? "CHANGE OF TERMS We may change this Agreement as allowed by applicable law. This may include changing, adding, or removing terms. We may do this in response to the legal, business, competitive environment or other reasons not listed here. We may increase the Interest rate on existing balances in limited circumstances. Changes to some terms may require at least 45 days advance notice, and we will tell you in the notice if you have the right to reject a change. We cannot change certain terms during the first year of your Account." [snip] "APPLICABLE LAWS This Agreement is governed by the Commonwealth of Virginia law and federal law. We make our credit decisions and extend credit to you under this Agreement from the Commonwealth of Virginia. This Agreement is: • entered into in the Commonwealth of Virginia; and • maintained in the Commonwealth of Virginia. This is true whether or not you use your card in the Commonwealth of Virginia." If the arbitrator uses Virginia law § 8.01-246. Personal actions based on contracts. "2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not; [snip] 4. In actions upon any unwritten contract, express or implied, within three years." "Claims Unless you have exercised your right to opt out of this arbitration provision, as set forth in the paragraph below captioned “Opt Out of Arbitration,” this arbitration provision shall apply to any Claim (defined below) by or against us, or you or any other Covered Person (defined below). You agree any claim, dispute, or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether preexisting, present or future), including initial claims, counterclaims, cross-claims and third party claims, arising from or relating to (a) this Agreement, the application, your Account, any debt cancellation or debt suspension product, any fraud prevention, identity protection or other account enhancement products, any transaction or activity involving any payment or failure to make payment on your Account, or any solicitation, advertisement, promotion, or oral or written statements related to this Agreement or your Account or any of the foregoing, or (b) the relationships which result from this Agreement and your relationship with any Covered Person in connection with the matters set forth in subsection (a) of this paragraph (any of the foregoing a “Claim”), shall be resolved, upon the election of you, us, or any other Covered Person described below, by binding arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator (the “Administrator”) selected at the time the Claim is filed or received by a party to the Claim. However, “Claim” does not include any dispute or controversy about the validity, enforceability, coverage or scope of this arbitration provision or any part thereof (including, without limitation, the paragraph below captioned “Parties to Arbitration and Class Action Waiver” and/or this sentence); all such disputes or controversies 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." @fisthardcheese @Harry Seaward If the OP were to assert in a MTC that the posted 2012 Neiman's agreement, as a whole (with the arb clause), was the valid contract while the account was still in good standing, and the JDB argued that the 2012 contract as a whole was not the valid or enforceable one, could this be argued as a dispute for the arbitrator to decide?
  10. @BitsyM One down, and more to go! I believe sending a written notice of dispute within 30 days of receipt to the collection agency is smart because it preserves your rights. As a Michigan resident, you're entitled by law (MCL 339.918(2)) to receive the number and amount of previous payments made as a part of the verification response. I don't believe that it's necessary to include any language about arbitration "election" in the notice to the collection agency. @fisthardcheese has recommended filing an arb demand pre-emptively if a JDB is poised to file a lawsuit on a credit card with an arb provision***with a small claims court exception. Read his pinned thread on arbitration. 339.918 Communication with consumer; notice; effect of disputing validity of debt; verification of debt; failure to dispute validity of 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.
  11. For a $2500-plus change debt, a defendant who appeared poised to win a MTC, and arb fees, it wasn't worth it. Still, I'd have expected them to offer a dismissal without prejudice to a pro se. They probably respected you enough to think a dismissal without prejudice would be rejected by you, and they'd have to argue at the hearing.
  12. Fantastic news on not tossing your cookies and getting the dismissal with prejudice!!!
  13. @BitsyM Good luck today!! Please come back after it's over to let us know how it went.
  14. Being a lawyer certainly would come in handy right about now. My concern was whether or not PRA or the judge would use these against Neenur's motion to compel arbitration, which he filed at the same time as the Answer.
  15. @BV80 Are you saying that Neenur doesn't have to amend his answer to remove the #4 and #7 affirmative defenses? That he can still MTC arb on a contract he claims is unenforceable by PRA but enforceable by Neenur? Sorry to be so dense.
  16. I didn't say it was a lost cause. I'm seeking input to see if you need to file an amended answer. You can do this fairly easily within 14 days of having submitted your first answer.
  17. @Neenur Certificate of service on MC-03 form is fine; court needs to see you served the other party the docs you're filing with the court. Your affidavit isn't an exhibit. A document referred to in your affidavit should be attached to the affidavit as an exhibit (marked as Defendant's Exhibit __). You have not stated any grounds under Michigan rules for your motion to compel. I wish you had used one of the many recent Michigan motions to compel or posted this before submitting. Goods news is you have 14 days from the time you submitted your answer to file an amended answer if any changes need to be made. @Harry Seaward @BV80 or @fisthardcheese I'm nervous that (page 3 of answer) Affirmative Defenses #4 and #7 state the contract is void and unenforceable. Neenur goes on to file a MTC arb to enforce the arb clause of a contract he claims is void and unenforceable. Should this be changed with an amended answer?
  18. @Neenur When you get a chance, can you please post redacted copies of what you submitted to court? Did you include a proof of service certificate, proposed order for motion, notice of hearing form, and schedule a hearing date for your motion? If you didn't, you need to rectify it. Hope your pup is on the mend soon.
  19. In my opinion "discuss" implies a mutuality of communication. They made a settlement offer in their pre-trial statement which is not acceptable to you. If you would be willing to have a settlement discussion, you should indicate that in your statement. "No settlement discussion has occurred. Plaintiff's pre-trial statement presents an offer Defendant rejects. Defendant is open to the possibility of a settlement." Or. something like that. (IANAL)
  20. @BitsyM WITNESSES AND EXHIBITS TO BE CALLED/USED AT TRIAL: Defendant has no plans to call witnesses or introduce exhibits at this time. Further discovery is not needed at this time, pending the outcome of Defendant's Motion to compel arbitration and stay the case. Has settlement been discussed? If yes, state that the parties were unable to reach agreement. If not, state that settlement has not been discussed.
  21. @BitsyM Quick stab at this for you to consider: 2. ISSUES: LAW/FACT The Card Agreement's arbitration provision is governed by the Federal Arbitration Act (the"FAA"). The arbitration agreement is enforceable under the FAA if the agreement is in writing, relates to a commercial transaction or maritime matter, and states the parties’ agreement to arbitrate a dispute. 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. State courts are bound under the Supremacy Clause, US Const, Art VI, § 2, to enforce the substantive provisions of the federal act. To ascertain the arbitrability of an issue, this Court must consider whether there is a valid, binding 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. 3. RELIEF SOUGHT: Defendant requests that this Honorable Court grant her Motion to compel Plaintiff to arbitrate all of its claims per the terms of the Arbitration section of the Card Agreement and dismiss this action. In the alternative, the Court should order that this action be stayed pending completion of private contractual arbitration in JAMS.
  22. @BitsyM The instructions for #1 require ("shall") you to include affirmative defenses. (IANAL) 1. FACTUAL STATEMENT OF DEFENDANT: Plaintiff alleges Breach of Contract. The “CARD AGREEMENT” attached to the Complaint (Plaintiff’s Exhibit) contains a binding Arbitration provision. Defendant timely filed and served her Answer denying Plaintiff's allegations, and asserted as Affirmative Defense I, that the existence of a binding agreement to arbitrate disputes upon election bars Plaintiff's claims. As per the “CARD AGREEMENT,” Defendant sent Notice of Arbitration Election in JAMS to Plaintiff via Certified Mail Return Receipt Requested on May 13, 2019. After receiving no response from Plaintiff, Defendant filed and served a Motion to compel arbitration and stay the case on May XX, 2019. The Motion will be heard in this Court on June 11, 2019.
  23. @crabbypatty All of the advice you've received in your thread from experienced members is that your (so far unopposed and scheduled for a hearing) motion to compel arbitration and stay the case is the genuine issue of material fact (which forum the disputes should be decided in, based on the contract plaintiff provided in discovery) most likely to defeat their MSJ. (IANAL) Ohio rule 56 appears to be based on the federal rule 56. Evidence at the summary judgment stage has to be admissible, but does not have to be in admissible form. {¶12} Civ.R. 56(C) sets forth an exclusive list of evidentiary materials that a trial court may consider when ruling upon a summary judgment motion. Partnership v. Emerson Tool, LLC, 9th Dist. No. 26200, 2012–Ohio–5647, ¶ 14, citing Spier v. American Univ. of the Caribbean, 3 Ohio App.3d 28, 29, 443 N.E.2d 1021 (1st 1981). The rule prohibits a trial court from considering any evidence or stipulation except the “pleadings, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact.” Civ.R. 56(C). Accord Davis v. Eachus, 4th Dist. No. 04CA725, 2004–Ohio–5720, ¶ 36; Wall v. Firelands Radiology, Inc., 106 Ohio App.3d 313, 334, 666 N.E.2d 235 (6th Dist.1995). Furthermore, when ruling on a summary judgment motion, a court may consider only evidence that would be admissible at trial. Pennisten v. Noel, 4th Dist. Pike No. 01 CA669, 2002 WL 254021 (Feb. 2, 2000), at *2. Submitting Evidence in Support of a Motion for Summary Judgment (Federal) "Evidence submitted in connection with summary judgment does not have to be presented in an admissible form. The trial court may consider the evidence on summary judgment provided the submitting party demonstrates that it would be possible to present the evidence in admissible form at trial.4 4.See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986); Humphreys & Partners Architects, L.P. v. Lessard Design, Inc., 790 F.3d 532, 538 (4th Cir. 2015); see also Alexander v. CareSource, 576 F.3d 551, 558 (6th Cir. 2009) (submissions by party opposing summary judgment need not themselves be in form admissible at trial, but party “must show that she can make good on the promise of the pleadings by laying out enough evidence that will be admissible at trial to demonstrate that a genuine issue on a material fact exists, and that a trial is necessary”); Jones v. UPS Ground Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (“The most obvious way that hearsay testimony can be reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial”).
  24. @crabbypatty I deleted the image to remove inadvertently posted personal info. Your affidavit declares that the Dell agreement is a true and correct copy, but doesn't state that it was given to you by plaintiff in response to a discovery request.