Linda7

Motion to Compel Samples Wanted!

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Since states and courts are so different, I thought it would be a good idea for the members that have used a motion to compel to share it.

Some motions may need a brief in support, some may need to be filed after the answer with the court or even in lieu of the answer.

If any member has filed a motion to compel arbitration that was granted, please post it here for others starting their journey to know the correct procedure for your state and court. Please let us know too any details like waiting time to file or anything that happened that could help another member beginning the process. Be sure and take out your personal information.

Thanks so much for all who share! :)++

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I dont know if this helps. In Houston, the courts sent out a letter same day I answered the suit regarding mediation. It has to be agreed by both parties and its trying to free up the courts I ve been told. Its free and done by volunteers.

the letter signed by the judge is detailed in this post

http://www.creditinfocenter.com/forums/there-lawyer-house/316804-harris-county-court-sent-letter-answer-my-answer.html

feel free to delete or edit this post if it is not pertinent Linda.

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Here is the one you helped me with in Utah, I am quoting the 2008 Capital One Agreement. xdancex I had it stamped at the court before my answers.

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 ______, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ______2012,

, 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, (see Exhibit C, attached) 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 ________________, 2012

_______________________________________________

___________________ 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 knowledge and belief.

_______________________________________

(your name here), Defendant Pro Se

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A note on the above motion in Utah. 78B-11-108 gives the court no discretion at all. If the court finds there is an existing arbitration agreement, the court has to stay the proceedings and compel arbitration. The provisions are much more black and white in Utah Title 78B than they are in the FAA.

The provisions of the Utah Uniform Arbitration Act are such that you could actually leverage a good settlement since if they try to just dismiss without going to arbitration, it is sanctionable. So if you want to push it, when they attempt to dismiss without prejudice you can motion for sanctions and get them to dismiss with prejudice or face sanctions for refusing to comply with a court order to proceed to arbitration. That is a brave card to play, but if I was in aposition where they were going to have to spend huge money and knew they were not willing to, I would do it in a minute.

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A note on the above motion in Utah. 78B-11-108 gives the court no discretion at all. If the court finds there is an existing arbitration agreement, the court has to stay the proceedings and compel arbitration. The provisions are much more black and white in Utah Title 78B than they are in the FAA.

The provisions of the Utah Uniform Arbitration Act are such that you could actually leverage a good settlement since if they try to just dismiss without going to arbitration, it is sanctionable. So if you want to push it, when they attempt to dismiss without prejudice you can motion for sanctions and get them to dismiss with prejudice or face sanctions for refusing to comply with a court order to proceed to arbitration. That is a brave card to play, but if I was in aposition where they were going to have to spend huge money and knew they were not willing to, I would do it in a minute.

Good to know. That was from a year ago and the case has been dismissed. I am just in the middle of the back and forth with the "litigation spe******t". She wants me to initiate arb but I have not heard from her in two months.

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http://db.tt/LBGFmYZA

It was signed by the judge and should work for any county in PA.

Creditor is CitiBank and the card member agreement is from 2011. I tried posting it here, but it says the file size is too large, so I put it on dropbox. I'm sure someone can reduce it that has the pro version of Acrobat. :)

I did have a hearing on my MTC, the Plaintiff was given an opportunity for rule to show cause why my motion should not be granted. They did/could not. Judge signed a stay for 90 days. You can read the Order here or view all my posts and find the one that says Order.

I hope this helps someone else along the way. :)

Edited by ydontu
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Great information being shared in this thread! Please keep it up!

Here is ydontu's Pennsylvania MTC. I wanted to add it to the forum this way too! :)++

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 July 19, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on August 22, 2012, 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) EITHER YOU OR WE MAY, WITHOUT THE OTHER’S CONSENT, ELECT MANDATORY, BINDING ARBITRATION FOR ANY CLAIM, DISPUTE, OR CONTROVERSY BETWEEN YOU AND US (CALLED “CLAIMS”).

(B) ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPTATE IN A CLASS ACTION OR SIMILAR PROCEEDING.

© AT ANY TIME YOU OR WE MAY ASK AN APPROPRIATE COURT TO COMPEL ARBITRATION OF CLAIMS, OR TO STAY THE LITIGATION OF CLAIMS PENDING ARBITRATION, EVEN IF SUCH CLAIMS ARE PART OF A LAWSUIT, UNLESS A TRIAL HAS BEGUN OR A FINAL JUDGMENT HAS BEEN ENTERED.

(d) EVEN IF A PARTY FAILS TO EXERCISE THESE RIGHTS AT ANY PARTICULAR TIME, OR IN CONNECTION WITH ANY PARTICULAR CLAIMS, THAT PARTY CAN STILL REQUIRE ARBITRATION AT A LATER TIME OR IN CONNECTION WITH ANY OTHER CLAIMS.

(e) CLAIM MEANS ALL CLAIMS RELATING TO YOUR ACCOUNT, A PRIOR RELATED ACCOUNT, OR OUR RELATIONSHIP.

(f) THIS ARBITRATION PROVISION IS GOVERNED BY 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). 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). 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 [date]

____________________________________

[name], Defendant, pro se

VERIFICATION

I verify that the statements made in this Motion are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904, relating to unsworn

falsification to authorities.

Date:

________________________________

[name]

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awesome Cliff...the JDB objected to every request I had...this will certainly help me. How did it work out for you?

Mine is with a OC and I have not heard from them in two months. It is now over a year past the governing states SOL, so I doubt they are interested any longer.

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This one below worked for me in Arizona thanks to Linda7!

IN THE JUSTICE COURT OF XXXX

COUNTY OF XXXXXXX, STATE OF ARIZONA

MIDLAND FUNDING LLC |

|NO.XXXXXXX

|

Plaintiff, |MOTION TO

|COMPEL OR

V |STAY

|ARBITRATION

XXXXXXXXX |

|

|

Defendant, |

|

_____________________________________|

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

I

That on or about September XX, 2012, Plaintiff filed its Complaint against Defendant.

II

Defendant sent a letter via certified mail with return receipt to Plaintiff's attorney on September XX, 2012, electing arbitration with JAMS and requesting dismissal or stay any and all actions in regards to the alleged debt pending the result of arbitration. (see Exhibit A and B, attached).

III

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

IV

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

(a) IF EITHER PARTY CHOOSES TO ARBITRATE A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH CLAIM.

(B) EXCEPT AS EXPRESSLY PROVIDED HEREIN, ANY CLAIM, DISPUTE, OR CONTROVERSY, INCLUDING INITIAL CLAIMS, COUNTER-CLAIMS, CROSS-CLAIMS AND THIRD PARTY CLAIMS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE RELATIONSHIPS WHICH RESULT FROM THIS AGREEMENT, INCLUDING THE VALIDITY OR ENFORCEABILITY OF THIS ARBITRATION CLAUSE, ANY PART THEREOF OF THE ENTIRE AGREEMENT ("CLAIM") SHAL BE DECIDED, UPON THE ELECTION OF YOU OR US, BY BINDING ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION AND APPLICABLE RULES AND PROCEDURES OF THE ARBITRATION ADMINISTRATOR, INCLUDING ANY APPLICABLE PROCEDURES FOR CONSUMER-RELATED DISPUTES, IN EFFECT AT THE TIME THE CLAIM IS FILED.

© THE LAWS OF THE UNITED STATES OF AMERICA, INCLUDING THE FEDERAL ARBITRATION ACT, 9 U.S.C. SECTIONS 1-16 (THE "FAA"), AND THE LAWS OF THE STATE OF UTAH APPLY TO AND GOVERN THIS AGREEMENT AND YOUR USE OF YOUR ACCOUNT.

V

The Federal Arbitration Act (FAA)9 U.S.C., section 1-2 provides:

"A written provision is any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or trisection 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 which grounds as exist at law or in equity for the revocation of any contract'.

VI

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.,at3). In the line with these principles, courts must place arbitration agreements on an equal footing with other contacts, Buckeye Check Cashing, Inc. v. Cardega, 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 "principle 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.S. 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); Section 3 requires courts to stay litigation or arbitral claims pending arbitration of those claims "in accordance with the terms of the agreement"; and section 4 requires courts to compel arbitration "in accordance with the terms of the agreement" upon the motion of either party to the agreement…"

VII

The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Credit Card 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 September, XX, 2012

XXXXX

XXXXX

XXXXX

XXXXX

Defendant, Pro Se

VERIFICATION BY AFFIDAVIT

Personally appeared before me the undersigned who on oath states the facts set forth is this MOTION TO COMPEL OR STAY ARBITRATION are true and correct to the best of his knowledge and belief.

______________________________

XXXXXXXXX, Defendant Pro Se

Witness my hand and official seal this the

___day of ____________, 20_____

SEAL

______________________________

Notary Public

My Commission expires:

___/___/______.

I certify that I mailed a copy of this MOTION TO COMPEL OR STAY ARBITRATION to:

XXXX

XXXX

XXXXX

XXXX

By:XXXXXXXXX, Defendant, Pro Se

Date: September XX, 2012

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Thank you, Codeman for sharing!

Can you give any details regarding if you filed your MTC at the same time you filed your answer?

And did you have to elect first and wait a certain number of days to see if the creditor would respond before you filed your MTC?

And what card agreement (and year) are your quotes from?

Any details would be appreciated! :)++

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Can you give any details regarding if you filed your MTC at the same time you filed your answer?

I filed my answer and MTC Arbitration the same day but I technically filed the MTC first. I had the court clerk time stamp the MTC first, wait one minute, then time stamp the Answer to Complaint.

And did you have to elect first and wait a certain number of days to see if the creditor would respond before you filed your MTC?

I elected Arbitration 11 days BEFORE they sued me. I didn't hear a response within those 11 days from the JDB lawyer so I sent the the Demand for Arbitration paperwork to both Midland and their JDB lawyer. While I was waiting for my Proof of Service to be returned by mail so I cN SEND IT ALL TO JAMS, I was summoned. I filed my MTC 3 days later.

And what card agreement (and year) are your quotes from?

DELL Card Agreement with WEBBANK. There is actually no year on the agreement that I have. DELL has their current one available online and that was the one the JDB used with the summons which worked out great because thats the one I was hoping to use. It has JAMS and AAA. I submitted a scan of the agreement to the agreement website that we use here and I believe I sent one to you as well.

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Hi everyone. Looking for one from WA, I'm one of those that sent DV and elected arb and I was just served tonight. I'm going to file Jams in the am and I am looking for a sample MTC. Hope I'm on the right track.

I have some good stuff for WA i'll post in the am. In the meantime look into RCW 7.04A. It helped me a lot when I had to do MTC

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