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What to do, got MSJ - notice to elect arb or MTC???


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Well, it didn't take long, I just checked my mail and got the MSJ from the plaintiff's (Crap1) attorney.

Now, should I send a "Notice to Elect Arbitration" or a MTC? Note - the card agreement w/arb clause was sent to me as part of discovery, it was not attached to the original complaint. And, I have to thank them because the arbitration clause was printed on a separate sheet of paper and is VERY clear and easy to read. :)

Also, you can read through my past posts, but here is a quick rundown: only thing plaintiff has are statements starting from zero balance (but there is a year missing) that have the account number blacked out, a facsimile report (with account number blacked out), and the generic card agreement. I found it funny that in their MSJ, they refer to an "attached affidavit" that "establishes that the defendant is indebted to plaintiff", but there isn't one. I also requested copy of application, and an affidavit from OC in discovery, they didn't send those. The two pre-trial scheduling conferences were a joke, but it seems from researching other lawsuits in this court that it is more of a judgement mill than anything else. Soooooo....I would appreciate any advice. Thanks to everyone!!!

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1.) Exercise arbitration clause to take out SJ motion.


2.) Oppose SJ with your own affidavit and brief in opposition and possibly your own SJ motion.

Make a decision this week. Don't delay.

In an ideal world you send arbitration exercise and opposing counsel will be professional enough to write you and court withdrawing motion and request stay for arbitration.

If that does not happen, you will need to schedule MTD ot MTC for SJ hearing. Preferably before SJ hearing.

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I guess my question is, do I send a "formal" Notice of Election of Arbitration, formatted like other court documents/motions, which follows the outline of the letter trueq has posted? Or should I go all out and file a motion to compel arbitration? Here is what I have so far...



Plaintiff vs. Defendant


Pursuant to the enclosed Arbitration Agreement contained in the Plaintiff’s cardholder agreement, Defendant ME hereby exercises the election of arbitration under the arbitration forums named in said agreement to resolve any and all disputes between the Plaintiff and Defendant. Per this cardholder agreement, once arbitration is exercised by either party, both parties waive their right to litigation.

Defendant expects immediate dismissal of case number XXXXX no later than 30 days from receipt of this notice.

WHEREFORE, Defendant ME prays that Plaintiff’s Complaint be DISMISSED, at Plaintiff’s cost, for costs and attorney fees expended herein, and all other just and proper relief.

I'm sorry, it's just been really hard to wrap my head around the correct way to proceed and how to exactly word my election of arbitration. Any suggestions/advice is TRULY appreciated!!!

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I'd do that by letter addressed to Cap1 with a courtesy copy to court.

Then I'd wait a week to see opposing counsel's reaction.

Some will just withdraw SJ and ask court to stay case.

Some will react with rage and push hard for SJ...in this case you need to motion to compel...preferably before SJ hearing.


You can just schedule a motion to compel now without waiting for letter reaction. (When facing SJ, MTD because of arbitration exercise or MTC arbitration is a good idea to schedule IMMEDIATELY...you caan always withdraw the motion if opposing counsel stupulates to the stay or dismissal.)

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Good chance the court and definitely scum and scum atty will ignore an election letter.

I was thinking the same thing, but thought if I wrote the letter first, electing arbitration, and then they didn't move for a stay or dismiss, I could use that as a claim if I am forced to initiate. :)

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Well crap....maybe I should just forego the letter altogether and just submit a motion to compel arbitration? The attorney filed both the leave to file MSJ AND the MSJ at the same time, on 11/30. Nothing so far has been added by the judge that I can see. Or, should I send the letter to the attorney, and file an objection to the MSJ citing the fact that I have notified the attorney I elected arbitration?

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I saw today online that the court granted the Plaintiff's leave to file MSJ...so I scrambled like hell and got together my motion to compel arbitration and stay proceedings. I am posting it here in case anyone would like to comment...



Defendant ME, hereby files this Motion to Compel Arbitration and Motion to Stay Proceedings with respect to Plaintiff’s complaint for damages and states as follows:

1.The Complaint in this action was served upon Defendant on or around XXX to collect an alleged credit card debt from Capital One Bank (USA), NA in the amount of $XXX.

2.On XXX, Plaintiff mailed to Defendant a copy of the “Customer Agreement” in response to Defendant’s Request for Production of Documents.

3.The “Customer Agreement” contains an “Arbitration Agreement”, which specifically states, “You, or we, may elect arbitration under this Arbitration Provision with respect to any Claim, even if the Claim is part of a lawsuit brought in court. You or we may make a motion or request in court to compel arbitration of any Claim brought as part of any lawsuit.” (see attached Exhibit A)

4.The “Arbitration Agreement” further states, “This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the Federal Arbitration Act (the “FAA”)”.

5.The “Arbitration Agreement” names three arbitration forums that will administer the arbitration:


1920 Main St. Ste 300

Irvine, CA 92614


335 Madison Ave., Floor 10

New York, NY 10017-4605


PO Box 50191

Minneapolis, MN 55405

6.In accordance with the Ohio Revised Code §2711.02 and the Federal Arbitration Act. 9 U.S.C. §§ 1-16 (2000), Defendant requests a stay in this case until such arbitration has been had in accordance with the terms of the "Customer Agreement” and a final and binding decision is made by the arbitrator.

7.Defendant has no objection to Plaintiff initiating arbitration to resolve this matter within the terms of the "Customer Agreement". Plaintiff can choose one of the three arbitration administrators as listed in the "Customer Agreement".

8.In the event that Plaintiff intends to stipulate or imply in any pleading, motion, or other legal document to this Court, denial of existence, changes or restrictions to any part of the arbitration provision that is contrary or not enclosed within the "Customer Agreement", the Defendant requests that the Court dismisses this action immediately, and have the Plaintiff change the venue for this action to the Federal Court as provided in the Federal Arbitration Act. 9 U.S.C. §§ 1-16 (2000).

WHEREFORE, Defendant ME requests that this Court grant an order to Compel Arbitration and Stay the Proceedings until a final and binding decision is made by the arbitrator, and any relief that the Court deems equitable and appropriate.

So, I submitted this today (my case is now an efile case, which rocks!), but I wonder if I have to file an opposition to the Plaintiff's MSJ as well? What should I say in that? Just that I elected arbitration and filed a MTC? Any advice is greatly appreciated!!

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However, I am not familiar with your states civil procedure.

I allwyas say, oppose SJ with you own affidavit and an opposition to SJ brief (which can include the ides the SJ is moot because you waived their litigation rights with arbitration exercise.)

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