Their fighting MTC hearing on monday

[oregonpilot]

I have a SJ & MTC hearing Monday

Came home last night to a FEDEX at my front door with a motion in opposition to MTC from Discovers attorneys

It state they filed suit 11/09 and case was sent to Mandatory ARB 1/10 which was heard 4/10 in which they where awarded X amount of $$ plus costs and fees

It then says That my motion should be denied

And that I waived my right to invoke the arbitration clause in the card member agreement

It then states a number of court references

These are the reference they are pushing

"Doctors Assos. vs Distanjo 107 F.3d 126, 131 (2d Cir. 1997) The court recognized that a party waives the right to arbitrate where it delays the invocation of that right to the extent that the opposing party incurs "unnecessary delay are expense"

Additionally. the 6th Circuit has held that where the defendant remained idle while plantiff incurred cost associated with litigation and sought arbitration only after that district court had entered default judgement against it, defendant had waived its right to arbitration"

To abbreviate, their take on this is that I similarly failed to invoke arbitration clause by causing unnecessary delay and expense by waiting till after litigation had initiated and proceeded there Mandatory ARB and that I had waited for this matter to proceed there mandatory ARB before filing for TRIAL DE NOVO and filing MTC

Do I need to file anything to the court opposing this or just deal with it on Monday at the hearing

This is a bunch of <Removed>

I elected ARB many times before Mandatory ARB and was ignored and told they have not received my request (even though I have mail receipts and a recorded phone call electing ARB) it wasn't til I filed the MTC with the Mandatoy arbitrate prior to ARB that they acknowledged with a motion opposing ARB

Edited September 9, 2010 by oregonpilot

[Massive]

Present your compelling evidence that you have sought arb multiple times. Further state the record fails to include authenticated evidence that Discover has Standing to file suit in the State of Oregon. If they have included an "Affidavit of Debt" from a Discover employee object to it as lacking foundation as well as lacking authenticated evidence that Discover even owns the alleged debt. If they submitted a generic cardmember agreement object to it as inadmissible as a matter of law.

[oregonpilot]

I accualy Have a Affidavit from a employee with the wrong account number

[BrokeBob]

That's great! Ask them why they are suing for the wrong account!

[skippy1960]

These came from another person fighting for arb in Arizona, but should help if you want to throw a bit of case law around or if you choose to offer written rebuttal to their opposition to your motion.

These are from the 9th Circuit Court of Appeals-which covers Oregon.

an action should be dismissed where a party contractually agrees exclusively to arbitration. See, e.g., Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 726 (9th Cir. 1999) (affirming district court's order compelling arbitration and dismissing

complaint); Sparling v. Hoffman Constr. Co., Inc., 864 F.2d 635, 638 (9th Cir.

1988) (affirming dismissal of claims where all claims were subject to

arbitration);

Be sure to check these cases prior to use as I haven't, but believe they should be good for you based on the results of OP.

Good Luck

[oregonpilot]

Present your compelling evidence that you have sought arb multiple times. Further state the record fails to include authenticated evidence that Discover has Standing to file suit in the State of Oregon. If they have included an "Affidavit of Debt" from a Discover employee object to it as lacking foundation as well as lacking authenticated evidence that Discover even owns the alleged debt. If they submitted a generic cardmember agreement object to it as inadmissible as a matter of law.

Can you explain this to me

sounds interesting

[Massive]

Well there's Discover Bank, DFS Services LLC, Discover Card Master Trust I and others. You should always challenge ownership of the debt in the world of credit card securitization. Also the Affidavit of Indebtedness is obviously bogus. Placing bogus evidence into the record is grounds for dismissal with prejudice.

[AngryandBroke]

As I recall, the court arbitrator refused to accept your motion to compel in that hearing. Sounds like you need to bring that up as well.

If the arbitration is denied, then you can still argue every other step.

[oregonpilot]

As I recall, the court arbitrator refused to accept your motion to compel in that hearing. Sounds like you need to bring that up as well.

If the arbitration is denied, then you can still argue every other step.

Thats right she wouldnt even look at it, said it should have been submitted in the begining. I said in the begining of what, I just received the card agreement that I had been asking for and once I read the ARB clause I acted on it and had been ignored that is why I filed the MTC. She didnt even look at it

"motion denied"

[oregonpilot]

Well there's Discover Bank, DFS Services LLC, Discover Card Master Trust I and others. You should always challenge ownership of the debt in the world of credit card securitization. Also the Affidavit of Indebtedness is obviously bogus. Placing bogus evidence into the record is grounds for dismissal with prejudice.

That is the same affidavit you PMed me the amount macthed the suit account # didnt

[chuckygee]

Have all those itemized out by date for easy reference. Since the hearing is Monday ( I assume this is a verbal hearing in person), bring these with you to present in court. I would even write out an Addendum to Motion to Compel and counter-argue their points. Including the fact you have tried to move to arbitration all along. If the court will accept the "Addendum" in court, submit it. If they will not accept it in court, argue it orally. Either way, find out if there is an official record being recorded of the hearing. If not, ask for one.

[oregonpilot]

Another thing that has always bugged me and maybe has no meaning, is that in the first paper work I received in this suit it states

"Discover is FDIC insured Delaware State Bank and is duly autherized to bring this action to the state of Oregon.... Plantiff entered into a revolving agreement under the laws of the state of Delaware govern the transaction"

If this case is govern by laws of Delaware why am I being suied in the state court of Oregon should I be suied in federal court

[Guest usctrojanalum]

If this case is govern by laws of Delaware why am I being suied in the state court of Oregon should I be suied in federal court

Nah, you can be sued in the State of Oregon and still be govnerned by the laws of Delaware. This really depends on how Oregon handles choice of law provisions in contracts though.

[Massive]

Another thing that has always bugged me and maybe has no meaning, is that in the first paper work I received in this suit it states

"Discover is FDIC insured Delaware State Bank and is duly autherized to bring this action to the state of Oregon.... Plantiff entered into a revolving agreement under the laws of the state of Delaware govern the transaction"

If this case is govern by laws of Delaware why am I being suied in the state court of Oregon should I be suied in federal court

Make them prove they have Standing to sue in Oregon.

You know that Affidavit is not genuine, I'm half way across the country and I knew the contents of that Affidavit. I've done that with others and they are all exactly the same, boiler plate, assembly line, fraud.

[oregonpilot]

Does NAF still exist???? the reason I ask is I am trying to find fault in every part of the motion against MTC I received end of last week, in it they state NAF no longer exists I thought they just could not hear credit cases because they were proven to be bias against the consummer

I can pretty much tear apart the rest of it with proof provided by them

They claim I sat idle until I lost the Mandatory ARB before filing MTC (UNTRUE!!!!!!!!)

I filed MTC prior to Mandatory ARB and have their motion opposing it which they filed prior to also

They also say that since I participated in litigation I waived my ARB rights

I was forced to participate because they kept ignoring my request to elect ARB, If I did not I would have a summary judgement against me now

Anyway my hearing is monday afternoon any advice is more than welcome

Edited September 13, 2010 by oregonpilot

[chuckygee]

Yes, NAF is alive and well. They just won't accept credit card disputes as a settlement condition. They did not admit to any guilt.

[oregonpilot]

Would it be improper to say in my brief that,

They plantiffs attorneys have lied and or twisting the facts to deceive the court

and because of this the court should dismiss with prejudice

Almost every accusation they have made in their opposition motion about me and timing of events is a lie

[Massive]

No that's not improper, it is the facts of the case.

[Massive]

Yes, NAF is alive and well. They just won't accept credit card disputes as a settlement condition. They did not admit to any guilt.

"They did not admit to any guilt." lol, No they just took their ball and went home inside a week of the Minnesota A.G.'s suit. I've heard judges say that, "The NAF did not admit any guilt." They did nothing wrong, that's why they quit a money making racket after being sued and I'll tell you something else, there should be a bunch of courts investigated for aiding and abetting the fraudulent activities that went on for years in those bogus arbs being confirmed to judgment.

[RebelLady]

I agree Massive. I was on LexisNexis over the weekend going through my state's appeals court cases. You'd be amazed at how many of them had to do with vacating NAF awards and how many of them weren't vacated!!

The recent rash of class action suits against NAF just isn't enough for people who have been making payments for YEARS based on an arbitration award that was confirmed in a local court!

RL

[Massive]

Yes, that situation has really irritated me, especially when I reviewed the results of the class actions, where in essence, the Attorneys who filed for the alleged benefit of the consumers (victims) really made out money wise but they didn't get the bogus awards vacated. All awards from the last ten years should have been instantly reversed and judgments vacated with damages. But all that really happened is they said, "We won't do that again." lol Oh, and the consumers "alleged Attorneys" were paid handsome sums of money.

[oregonpilot]

That seems to be the case in all court litigation I have been involed with is that the attorneys make the money

Well I just came home from court and am not sure what to think

The judge wont rule until Friday because of me filing my brief in response to their oppostion today and them not having a change to look at it

This is where I really screwed up He asked if I had anything to add to what was already entered on the SJ (I hadnt entered anything on the SJ and I CHOKED) I didnt think we would get into that. I had a lot to add but my mind went blank I dont know why.

I was just so focused on the MTC. He said there would be no more oral arguement and he would decide Friday after Plantiff scumbag liar lawyer can look at what I filed today

The good thing is he didnt Denie my motion

So all I can do now is hope and pray the judge grants my motion

Edited September 14, 2010 by oregonpilot

[FL4answer58]

The judge wont rule until Friday because of me filing my brief in response ... He asked if I had anything to add ...

Whenever the courts ask you if you have anything to add on a SJ this is your cue...a give ... as a Pro Se.

See, OPTIONS: http://www.debtorboards.com/index.php/topic,12215.0.html

Amendments to Pleadings to Defeat Summary Judgment–Never Too Late!

It is never too late to amend your complaint or another pleading in order to defeat a motion for summary judgment. No case cites; I only cited FRCP Rule 1.190. [Your state may be the same]. The judge may not grant it on the day of SJ hearing, but you set the motion for reverse on appeal by including; Leave to amend should be freely given when justice so requires, Fla. R. Civ. P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment." Old Republic Ins. Co. v. Wilson, 449 So. 2d 421, 422 (Fla. 3d DCA 1984)(emphasis added in language of your amendment).

Check your complaint before the hearing on a Plaintiffs motion for summary judgment (even a day before), to see if there is affirmative defense you could have pled to the cause of action but did not. Did the Plaintiffs lawyer, for example, move for SJ on a Breach of Contract you could avoid by pleading ‘Failure to Pursue Alternative Dispute Resolution’ or “Failure of Condition Precedent’, in your Reply?

-------------------------------

On unnecessary expense or delay argument:

Pretrial Discovery Not Undisputed Material Fact or Burdensome

The argument of unnecessary delay and expense is not supported by statute or an ‘undisputed material fact’. Pre-trial discovery is necessary and not a ‘burden’ or delay. Pre-trial identifies the cause of action. See, First City Developments of Florida, Inc. v. The Hallmark of Hollywood Condo. a&#036;&#036;'n, 545 So. 2d 502 (Fla. 4th DCA 1989). And , First Health Care Corp. v. Hamilton, 740 So. 2d 1189, 193 (Fla. 4th DCA 1999).

-----------------------------------------

No Summary Judgment with 'Controversy'

A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract agreement includes an Arbitration Clause that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy.

Edited September 19, 2010 by FL4answer58
sp

[oregonpilot]

It worked

The judge granted the stay

NO SJ

[FL4answer58]

It worked

The judge granted the stay

NO SJ

What was the order - do you have to initiate?