Looking for advice on my MTC from those w/experience PLEASE

[rebel2thend]

Okay, so I have been working really hard on this and I was really hoping a few of you with experience could give me any pointers needed to fine tune my motion, or if it is fine as is, let me know. Wanted to file tomorrow. In Florida, this is my 1st filed response to complaint and 20 day written summons. Thanks for your time.

Me

FL

IN THE CIRCUIT COURT

IN AND FOR x COUNTY, STATE OF FLORIDA

CASE NUMBER: 1

BANK )

Plaintiff, )

vs. ) DEFENDANTS MOTION TO COMPEL

Me ) Private / Contractual ARBITRATION

) BY DEFENDANT

Defendant )

Comes now the Defendant, Me , Pro Se hereby respectfully requests the court to compel Private / contractual arbitration as to the Bank, Arbitration Agreement.

1. That on or about March 1, 2011, Plaintiff filed its Complaint against Defendant, and attached as Exhibit “1-4" copies of “Statement of Account(s)” from Bank . Said Complaint was served on March 4, 2011.

2. Plaintiff is a national banking association conducting interstate banking and commerce throughout the United States.

3. Plaintiff is located in the State of Delaware.

4. That pursuant to said “Statement of Account(s)” from FDIC Member, Bank , the Card member Agreement ("Agreement") is attached as Defendant Exhibit “A.

5. Said “Agreement” states “1. Binding Arbitration. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by and be enforceable under the Federal Arbitration Act (the “FAA”),9 U.S.C S1-16 as it may be amended. This Arbitration Agreement sets forth the circumstances and procedures under which claims (as defined below) may be resolved by arbitration instead of being litigated in court.”

6. According to The Federal Arbitration Act Title 9, US Code, Section 3 “If any suit or proceeding to 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“.

7. That pursuant to said “Agreement” which includes provision for Private Arbitration (Page 6 #6. Enforcement, finality, appeals.): “You or we may bring an action including a summary or expedited motion to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration. In any court having jurisdiction. Such action may be brought at any time, even if such Claims are part of a lawsuit….”, That Defendant is entitled, to now have Plaintiff’s “claim” Privately Arbitrated.

8. Said “Agreement” names three arbitration forums that will administer the arbitration: (See Attached Exhibit “A” page 4 & 5, #3. Initiation of Arbitration)

A. JAMS:

1920 Main St. Ste 300

Irvine, CA 92614

B. AMERICAN ARBITRATION ASSOCIATION:

335 Madison Ave., Floor 10

New York, NY 10017-4605

C. NATIONAL ARBITRATION FORUM:

PO Box 50191

Minneapolis, MN 55405

9. Said “Agreement” states that a motion to compel arbitration or a request for arbitration needs to be made by the Defendant to invoke arbitration provisions.

10. Defendant is thus filing this Motion to Compel Arbitration solely on behalf of this Defendant individually.

11. In accordance with the Florida State Statue 682.03 Defendant requests a stay in this case until such arbitration has been had in accordance with the terms of the “Agreement” and a final and binding decision

is made by the arbitrator.

682.03 Proceedings to compel and to stay arbitration.--

(1) A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

(2) If an issue referable to arbitration under an agreement or provision for arbitration subject to this law becomes involved in an action or proceeding pending in a court having jurisdiction to hear an application under subsection (1), such application shall be made in said court. Otherwise and subject to s. 682.19, such application may be made in any court of competent jurisdiction.

(3) Any action or proceeding involving an issue subject to arbitration under this law shall be stayed if an order for arbitration or an application therefore has been made under this section or, if the issue is serverable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the

order for arbitration shall include such stay.

(4) On application the court may stay an arbitration proceeding commenced or about to be commenced, if it shall find that no agreement or provision for arbitration subject to this law exists between the party making the application and the party causing the arbitration to be had. The court shall summarily hear and determine the issue of the making of the agreement or provision and, according to its determination, shall grant or deny the application.

(5) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

History.--s. 2, ch. 57-402; s. 12, ch. 67-254.

Note.--Former s. 57.12.

12. Defendant has no objection to the Plaintiff initiating the arbitration to resolve this matter within the terms of the “Agreement” in place. Plaintiff can chose one of the three arbitration administrators as listed in the “Agreement”.

13. 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 “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. section 1-16 (2000).

WHEREFORE, Defendant Me, respectfully requests that this Honorable Court, grant an Order to Compel Arbitration and Stay the Proceedings until a final and binding decision is made by the arbitrator, and any other such Order as justice and fairness dictates.

By the Defendant pro se

ME,

March 14, 2011

CERTIFIACATE OF SERVICE

I HEREBY CERTIFY that a true copy of Defendant’s MOTION TO COMPEL ARBITRATION AND MOTION TO STAY PROCEEDINGS was sent by U.S. mail to

-Legal Department

Attorneys for Plaintiff

Deerfield Beach, FL

On this 18th day of March 2011.

Me

Appearing Pro Se

, Fl

By: _______________________________

Me

[skippy1960]

Saw this posted on the other board, I think you have outlined your position well and supported with civil procedure statues. Be sure to attach a clean readable copy of the agreement with your motion.

You will hopefully get others opinons from here and the other board. I do know Florida has been a real crap shoot with the arb strategy, you said this is first filing so hopefully that will do the trick.

Many folks from florida try to MTC after answer and got declined by judges, so you are already ahead on that count.

Good Luck

[rebel2thend]

Thank you Skippy1960 for looking it over. I appreciate the feedback, I was thinking of enlarging the arb agreement as it is hard to read in the size I have it, but then there are so many pages once enlarged. I am sure more pages are better than hard to read ones that will get tossed out.

I have read how hard Florida is about it, that is why I really wanted to be sure I have a strong motion, also I couldn't find any similar cases in our court, so I am clueless as to how it might be ruled in our very small town.

[donqII]

As Skippy said, include a clean, readable copy of your agreement.

IF HOWEVER.. you have an agreement with very tiny print, do a transcription of the specific arbitration clause and include that with the agreement and make note that you have provided such.

I believe that helped to move the judge in my direction. If your is readable no need to do that.

For myself, I might change your wording from said agreement to their agreement. Only to emphasize 'they' are the ones who provided this clause.

But it looks excellent.

[rebel2thend]

Thank you dongII, I like the idea of changing said to their. I will go ahead and type a transcript of all elements of their agreement that I feel will be looked at and note that it is included. Better to be safe than sorry and that would be better than have so many additional pages. The contract isn't the clearest in the form that I have it so that would be best. Appreciate all the help and suggestions and your time, have a great day!

[lheart]

I replied there also, include an Order for the Judge to sign. (I've have judges signatures on my motions to prove it works). That way if he finds in your favor, he can just sign. KEEP THE ORDER SIMPLE.

Example for educational purposes only

This matter is before the Court upon the motion of the Defendant, Debt Fighter to Compel Arbitration and Stay Proceedings. The court has reviewed all documentation and pleadings submitted by both parties and finds the Defendant’s motion is well-taken. Both parties are bound by the Arbitration Agreement, therefore the Court compels the parties to resolve this matter in a forum available per the Customer Agreement. The Court shall Stay Proceedings in this matter pending an Arbitration decision.

It is therefore ORDERED that this case is stayed pending the completion of binding arbitration.

IT IS SO ORDERED

[Xcalibar]

Where would one get a "clean readable" copy of the Customer Agreement? The ones that the creditors supply are usually unreadable.

[lheart]

Make a clean readable copy their problem. Supply the court with the copy you have and if the judge asks for a clean readable copy, tell the judge you are having the same problem getting a readable copy of the contract they are suing you over.

[Xcalibar]

I like the way that you think...that is a good strategy...

[kingair41]

That's what I did when I filed my preliminary objections to the plaintiffs complaint. Couldn't read the alleged agreement and told the judge that I could just make out the word "arbitration" with a magnifying glass. She agreed with me and sustained my objections and ordered the plaintiff to file an amended complaint with a legable copy of the alleged agreement.

They did file the amended complaint and sure enough a nice and juicy arbitration clause. Which by the way they denied that it had one in the alleged agreement early on.

[rebel2thend]

OK so simple MTC filed. Received notice of hearing mid April. Since this is FL, I wonder if I should go ahead and initiate now before the hearing or wait and see how the hearing plays out? From my courts records this will be the first MTC heard (that I could find), so I have no idea how it will play out.

Also, I am concerned about the $25,000 limit as the suit is for $30,000 - They combined 4 accounts, so would that be something I could argue? Is there anything I can do to get each account heard individually? My thoughts are, then it would cost for each account in Jams or is it to my advantaged that they combined the accounts?

Finally, the court docket listed my letter to elect arbitration as my answer to the summons. I wasn't intending that to be my answer, I just sent the courts a copy of it. Not sure if that helps or hurts my case or if it matters. I had intended to send the letter of intent, then MTC and then answer, but after seeing they already entered that I answered I haven't actually responded to the allegations in the summons. I also was under the understanding that I have extended time to respond to the summons (within 10 days after the ruling of the motion) under Florida statutes because a motion was filed within the time period of the 20 days. Since the court listed the letter of intent as my answer, I don't believe they can get a default judgment. Any advice on this???

[skippy1960]

From others experience Florida has been a real crap shoot. I would be sure to have the statue in hand that allows for additional time to answer the complaint after motion is heard.

I think you have positioned yourself nicely to not fall into the litgation waiver bucket that many have found in Florida. Meaning your letter (by accident) is asking for private arbitration, your motion is immediate and timely regarding private arbitration, so pretty hard to say you waived right to arb via participation in litigation....

Be on the lookout for Opposition to your Motion from otherside, and make sure you know statutory filing time for their response to your moiton. Also you should be able to file response to their Opposition, so review local rules and civil procedures on timing.

Finally read the card agreement, many have non-joinder clauses that disallow joining accounts into single action, maybe called consolidation in the agreement.

Here is an example of the Crap One clause-

No Consolidation or Joinder of Parties. The arbitration of any Claim must proceed on an individual basis, even if the Claim has been asserted in a court as a class action, private attorney general action or other representative or collective action. Unless all parties consent neither you nor we may join, consolidate or otherwise bring Claims related to two or more accounts, individual or accountholders in the same arbitration. Also, unless all parties consent, neither you nor we may pursue a class action, private attorney general action or other representative or collective action in arbitration, nor may you or we pursue actions in Court if any party has elected arbitration. You will not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim as to which arbitration has been elected.

Best of Luck

[lheart]

Contact the court and notice the other side at the same time with the same information, that the initial document was NOT your answer, but incorrectly filed evidence in your case. I am not familiar with Florida procedures, but normally the period to answer is only extended if the motion is filed before an answer. If your first filing is considered an answer, you may run out of time to amend the answer and if your MTC is denied, you will have defaulted on the answer by not denying anything.

[rebel2thend]

Thank you so much lheart and skippy1960. Excellent direction by both of you. I have been searching contracts for Joinder clauses and found 1 so far that may help.

This is what I have drafted so far for the incorrectly recorded evidence.

County Clerk

P.O. Box

Re: Case # CA

Dear Sirs,

Please be advise that evidence (defendants letter of intent to compel arbitration) was incorrectly filed as defendants answer. The letter of intent was not my answer to the summons and should have been recorded as evidence only. My first and only response to the complaint and summons was my Motion to Compel Private / Contractual Arbitration.

Please make any corrections that are required to case #CA, to ensure that my due process has not been jeopardized by this mistake.

Respectfully,

[rebel2thend]

Hello everyone,

Here is a quick update of where I am at on my case. I notified the court and the plaintiff of the incorrect processing of my evidence and they corrected it to read response instead of answer. Since then, I have initiated with Jams hoping to help my chances of a stay and at the very least to have the opportunity to pick the forum and location. I received the green cards back from all regarding Jams. We had a hearing for my MTC set for tomorrow, but today I received a notice of cancellation. I checked with the clerk and it is rescheduled for June. My question is, if they are going to dispute my MTC do they need to notify me ahead of time with their objections or is that all just played out in the hearing? Also, since they were able to postpone the hearing, should and could I do the same for the next date? Any input is greatly appreciated. Thanks for your time.

[rebel2thend]

I

Edited April 20, 2011 by rebel2thend

[rebel2thend]

I

Edited April 20, 2011 by rebel2thend

[Quader]

hhmm ... rebel .. you posted this three times ..

anyway .. I'm not familiar with FL ... in my state it's all done with pleadings .. unless the Judge can't make up his mind and want's a hearing on the matter...

but if the other side wanted a continuence .. I would assume they would have done it with a pleading ... atleast here they would have too ...

maybe it is just the court that moved the date ... (maybe judge was sick or something like that) ,,,

I think if it was the other side .. you should have known about it

Q

[rebel2thend]

Sorry about the 3 postings, I thought it had been removed (that was the other board) so I was trying to rephrase it. Foolishly without looking before posting, then I couldn't (and still haven't) figured out how to delete them.

All I received was a notice of cancellation of hearing mailed from the Plaintiff (somehow without any postage but envelop does show postal printing on bottom?). I called the judges office and clerk today asking if anything had been filed besides what I received and was told no.

I have been trying to look up Florida's rules but am unsure what it may be under (time, motions,pleadings, hearings) as this is all new to me.

I am thinking they wanted to buy some time to see what happens with the Jams initiation I started the week before. Being this is Florida, I wanted to try my best to not have the arbitration route taken away from me.

[Linda7]

You can't delete the posts, but you can click on "edit" at the bottom of your post that you want to "fix" and then just highlight all the text and click your backspace button and the text will all be gone. Then click to "save" changes.

Or you can click at the top right of your post where you see the white/red triangle and "report" your post and tell admin that you made duplicate posts and please to delete it. You'll have to click to report each post that you'd like to delete.

[rebel2thend]

Thanks Linda, I did both.

[rebel2thend]

I received the letter of cancellation for the mtc hearing (cancellation notice by Plaintiff) on Monday less than 24 hours before hearing. As of today, I have not received the notice of reschedule and the court records online just shows cancellation notice on the day of court. I know the online system is behind but I feel I should have received the notice of new hearing by now from the courts, as the judges secretary told me it was rescheduled when I called Monday to confirm.

I am thinking that I should re-file my MTC or maybe file a MTD. Would I just re submit my original motion and add that I have initiated with Jams as per contract? I received the letter from Jams yesterday, they want my fee. I requested Plaintiff advance me the fee as per contract in my first letter (3/1/11) when I elected and also in my filing with Jams. Could/should I request in my MTC for court to order them to advance me the fee per agreement or just wait till I actually get the MTC granted then request the fees?

Is there a MTD or alternatively MTC all in one, or are they 2 separate motions?

I feel the cancellation at the last minute (received in an envelope without postage only meter marks on bottom) was a move to put me at disadvantage in someway, I don't want it to work for them!

I have searched Florida civil rules and could find nothing regarding cancellation of hearings or who is allowed to request them. I did find that some of the circuit courts in Florida have their own rules and do cover those issues, but could find nothing on my own district. Called the administrator of Florida circuit courts and was told that it is up to each district to chose to have their own rules, she was much nicer than the one for my district who said I just need to hire an attorney.

Any direction and input greatly appreciated.

[skippy1960]

Call the judges secratary back and ask for the new date. Further, you may want to reach out to the Chief Justice of the Court's secretary. Be kind and nice but explain that as a pro se defendant you have searched all the rules and don't understand how opposing party to a motion can cancel/reschedule moving partys motion without consent.