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MTC example needed


lulet
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I have tried searching but I can't find a MTC example that isn't a few years old.

If anyone has a strong MTC that they would be willing to share I would be very grateful.

I have run into others in the forum that have had their MTC denied in the same court I will be filing in. So I know I have to make a strong case for myself.

If needed I am being sued by C1 the OC and will be filing JAMS myself.

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The time period that has passed will not change the effect of the motion. I have used one that is two years old effectively.

The only additional change is the recent Supreme Court ruling AT&T MOBILITY LLC v. CONCEPCION. http://www.supremecourt.gov/opinions/10pdf/09-893.pdf

This decision removes the discretion from the local court if there is a Arbitration agreement in place. The local court cannot ignore it. Add it to the caselaw section and submit.

If you are denied, you will need to file an appeal. Not all judges follow the law. Go figure. :?

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Someone sent me a PM directing me to this post on another board.

(Nevermind I can't post the link until I have 20 posts but it was from Quader on Debtorboards)

Thank you!!! I can't PM back for some reason.

This will work for me but does anyone know how to add the ATT Mobility case?

Also this MTC has a section called "Factual Background" I haven't had any contact with this OC in at least 12 months...if not longer. So I don't have a history of contact. Is it ok to take this out?

Thank you.

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Here's one that I've used for Capital One -

*Please NOTE to any other members reading this - this sample of a motion to compel arbitration contains information from a Capital One 2008 agreement. If your original creditor is someone else, or even if it is Capital One, but you are using a different year agreement, the words citing the parts of the agreement will need to be changed to reflect the agreement you are using. Also, the way it is written, it can be used for any state.

Also note, this is my personal choice of a motion to compel and has been critiqued accordingly. I like it as I feel it touches base with all aspects needed.

Also, at the bottom of this motion to compel, I have included the certificate of service and a verification by affidavit. All of this, the motion to compel, the certificate of service and the verification by affidavit can all be within the same document. It will be more than one page, but can be included as one document, if you'd like. If you don't want to do it that way, you can do each one on a separate piece of paper.

Check with your court's rules and make sure that you know your filing requirements, the text size, spacing, etc.

Make sure to put your court's header at the top. Just try and duplicate how your complaint looks with the court's name, plaintiff v defendant and the claim/case number.

When you're ready to file, take it and sign it in front of a notary, so that your affidavit will be notarized. Then get two copies, file the original with the court, send one copy to the plaintiff's attorney and keep one copy for your files.

Also, when you file it, ask the clerk if you need to request a hearing for your motion. In some courts, there will be no decision on your motion, unless you have scheduled a hearing for it. Other courts will tell you that if it is needed, they will let you know. Just be sure and ask when you file, so that you have your bases covered.

As you can see, this motion to compel mentions 2 attached exhibits.

Exhibit A, is a copy of the election letter that is sent to the plaintiff's attorney.

Exhibit B, is a copy of the agreement. You need to highlight the portions in the agreement that have been cited in the motion to compel. In this instance, it would be the things listed in paragraph 4, a-e.

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

DISMISS

OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING

ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

© 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 PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

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 Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day ________________, 2011

(Your name typed), Defendant, pro se

VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.

_______________________________________

XXXXXXXXXX, Defendant Pro Se

Witness my hand and official seal this the _________ day of __________, _________.

(SEAL)

____________________________________

Notary Public

My Commission expires:

____ / ____ / ________.

I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney

Their address

By: Your name typed, Defendant

Date: __________________, 2011

Edited by Linda7
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Linda that is perfect. Thank you so very much!!!

I only have 1, hopefully not stupid, question....

In section 6 there are two areas with blanks.

Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____ , ____ (2010)

Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010)

Am I to fill in these blanks with something?

Thank you again!!!!!

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Linda that is perfect. Thank you so very much!!!

I only have 1, hopefully not stupid, question....

In section 6 there are two areas with blanks.

Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____ , ____ (2010)

Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010)

Am I to fill in these blanks with something?

Thank you again!!!!!

No, the blanks are actually like that. :)++

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