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Filed MTC, Had Hearing, Pre Trail is Set, Now Plaintiff Files MSJ

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Hi all,

 

I filed MTC, and elected arbitration following Lindas plan.

 

I had a hearing (in the judges chambers) not in the court room. The judge read the credit card agreement, and nodded his head as he read out loud "if either parties elect arbitration it replaces the right to go to court". Sooo I am thinking I am doing quite well at this point. The attorney told the judge that he still elects to resolve the issue in court. After the hearing was completed the attorney stopped me in the hallway , and told me that my motion was denied, and he will be filling a motion for summary judgement.

 

I checked the website a couple days after the hearing, and it says

Result: "Taken under advisement", "Set pre tial."

 

The pre trial is set for the end of January, but I just received in the mail the MSJ the attorney has filed.

 

Wondering if I need to answer the plaintiffs MSJ, as my MTC has not been ruled on yet?

 

Thanks in advance.

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Hi all,

 

I filed MTC, and elected arbitration following Lindas plan.

 

I had a hearing (in the judges chambers) not in the court room. The judge read the credit card agreement, and nodded his head as he read out loud "if either parties elect arbitration it replaces the right to go to court". Sooo I am thinking I am doing quite well at this point. The attorney told the judge that he still elects to resolve the issue in court. After the hearing was completed the attorney stopped me in the hallway , and told me that my motion was denied, and he will be filling a motion for summary judgement.

 

I checked the website a couple days after the hearing, and it says

Result: "Taken under advisement", "Set pre tial."

 

The pre trial is set for the end of January, but I just received in the mail the MSJ the attorney has filed.

 

Wondering if I need to answer the plaintiffs MSJ, as my MTC has not been ruled on yet?

 

Thanks in advance.

 

If it were me, I'd file an opposition to their MSJ.

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Thank you Linda. I hope you are doing well, wish you happy holidays.

 

Here is what I came up with the last few LONG nights. Maybe it can help someone else in Ohio.

 

 

 

IN THE COUNTY COMMON PLEAS COURT

COUNTY, OHIO

 

                                                                                     

 

                                                  LLC               )             CASE NO.

                                                                        )

                                                                        )

                                                                        )

                                                                        )               JUDGE

Plaintiff                                                            )

                                                                        )

vs.                                                                    )

                                                                         )           MOTION FOR DISMISSAL OR

                                                                         )           STAY SUMMARY JUDGMENT

                                                                         )           

                                                                         )           

                                                                         )

                                                                         )

                                                                         )

                                                                         )

Defendant                                                         )

 

 

   Defendant, moves this Honorable Court to dismiss or stay the Plaintiffs Motion

 

for Summary Judgment based on Motion to Compel Arbitration submitted , 2012

 

A brief in support is attached hereto and made a part hereof.
 

 

Respectfully submitted this day December, 2012

 

 

pro se

 

 

 

 

 

CERTIFICATE OF SERVICE

 

The undersigned hereby certifies that a true and accurate copy of the foregoing was duly

served this day of December 2012 on Plantiff’s attorney

 

 

Defendant, pro se

 

 

 

 

 

                                                         BRIEF IN SUPPORT

 

 

STATEMENT OF FACTS

 

On 2012 Defendant received a summons from LLC.

 

On 2012 Defendant filed a Motion to compel private contractual arbitration and

 

dismiss or stay proceedings pending arbitration.

 

On 2012 Defendant filed an answer to Plaintiffs complaint.

 

On 2012 Hearing was held for Motion to Compel Arbitration. RESULT: Taken Under Advisement.

 

On 2012 Defendant received Motion for Summary Judgment from LLC.

 

LAW & ARGUMENT

 

Cite as Capital One Bank (USA), N.A. v. Collins, 2011-Ohio-6533

 

Defendant asks this court to stay proceedings pending arbitration pursuant to R.C. 2711.02. The Ohio General Assembly, in R.C. Chapter 2711,has expressed a strong policy favoring arbitration of disputes. Taylor Bldg. Corp. of Am. v.

Benfield, 117 Ohio St.3d 352, 2008-Ohio-938, ¶25. "A party seeking to enforce an arbitration provision may choose to move for a stay under R.C. 2711.02, or to petition for an order for the parties to proceed to arbitration under R.C. 2711.03, or to seek orders under both statutes." Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465, ¶8.

 

R.C. 2711.02( B) states: "If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration." (Emphasis added.)

R.C. 2711.02( B). The legislature's use of the word "shall" indicates that the statute is mandatory. Dorrian v. Scioto Conservatory Dist. (1971), 27 Ohio St.2d 102, paragraph one of the syllabus ("In statutory construction, * * * the word 'shall' shall be construed as mandatory unless there appears a clear and unequivocal legislative intent that they receive a construction other than ordinary usage"). Thus, under R.C. 2711.02, the trial court is required to make only two determinations prior to granting a stay of proceedings pending arbitration. First, the court must be satisfied that the issue involved in the action is referable to arbitration under a valid agreement in writing for arbitration. Second, the court must determine that the applicant for the stay is not in default in proceeding with arbitration. R.C. 2711.02; Juhasz v. Costanzo (2001), 144 Ohio App.3d 756, 765. Once these conditions are met, a stay is required. Id. at 765. Any order either granting or denying a motion for stay of trial pending arbitration is a final appealable order. R.C. 2711.02©.2

 

 

CONCLUSION

 

When faced with a motion to stay pending arbitration pursuant to R.C. 2711.02, a

 

trial court must determine whether the applicant for stay has complied with the

 

requirements of R.C. 2711.02 and rule on the motion before it moves forward on the

 

underlying claim.

 

 

 

                                                                                         Respectfully Submitted

 

 

 

                                                                                         Pro se

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Love that case law you found, Cap One v. Collins.  It is directly on point.  I would expand on that, explain how that appellate court found that the trial court, in failing to rule on the arb motion, and entertaining the plaintiff's SJ motion, committed reversible error.

 

I would hammer on that case extensively - you have exactly the same situation.

 

Judges don't like being reversed on appeal - especially by a pro se appellant, as was the case in Cap One v. Collins.

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Special thanks to you nobk4me.

 

You and Linda got me this far, and I am feeling real good about the case at this time.

 

 

Looks good, but I'm wondering . . . shouldn't your document be titled - "Opposition to Plaintiff's Motion for Summary Judgement"?

 

Also, maybe incorporating about triable issues, etc?

 

I am not sure as this is how I found it filed in this case in "Ohio".

My main point is that the motion to compel arbitration has to be ruled on FIRST, and once arbitration is granted by the judge the MSJ becomes moot according to the appellate court, but I do feel the need to answer the MSJ.

 

 

I agree.

 

Have you checked the status of your case on-line recently?

 

Yes I check every day, and there is no change unless either of us files a motion.
The judge told the attorney at the hearing that he had 90 days to settle the case with me. After 30 days he set the pre trail for 60 days out. The attorney knows dang well I am NOT settling with him! He has not called or emailed in the last 45 days.

 

Another good point from the appellate court was that only 2 requirements had to be met, that the agreement states the arbitration clause, and that the applicant has not defaulted on the arbitration payment.

It was best not to pay the fees until the court has ruled, or I could be in a real bad situation at this time. By the time the pre trial comes it will be 5 months. Good for me, enough time to keep reading and learning.

.

I would hammer on that case extensively - you have exactly the same situation.

 

Yes I do up to this time. I really do think the judge will be granting my MTC at the pre trial as he did tell the attorney to settle the case within 90 days, and that he has seen arbitration cases cost tens of thousands. All good for us!

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I would separate the arbitration arguments from the "Opposition to Motion for Summary Judgement"

You are only arguing your motion to compel again in this motion.

You SHOULD reference the pending arbitration as your main reason for the opposition, but do not put all of your eggs in that basket. I would argue a MSJ is inappropriate since an issue of jurisdiction is still pending.

I would also file an Affidavit of your facts and points. For a MSJ in Ohio, you have to present evidense to oppose the motion and not just restate the denials of the answer. Your Affidavit becomes evidense in the case and if it creates triable issues a SJ cannot be issued by law.

This is your first opportunity to present your defense to the case. If there are descrepencies in the contract they filed, or billing descrepencies. If this is a JDB now would be the time to file a Motion to Strike statements that are not authenticated by the OC. If this is an OC now is the time to pick through the affidavit and point out descrepencies that contradict other parts of the claim.

I had a case in Ohio where my MTC and their MSJ crossed in the mail. I still filed a full Objection to their MSJ with all my arguments. It will also put the judge on notice that you know the law and the rights you have because he/she has already agreed that the plain language of the contract revokes the right to court.

Act incredulous that they would file this when the judge already read the language in chambers and Ohio law and the Supreme Court case law (ATT vs Concepcion) favors Arbitration, so the plaintiff should know there is little doubt that the case will be stayed for arbitration, and they are wasting the courts time and resources by filing the MSJ.

My iPad is breaking the formatting will update later

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I would separate the arbitration arguments from the "Opposition to Motion for Summary Judgement"

I would also file an Affidavit of your facts and points. For a MSJ in Ohio, you have to present evidense to oppose the motion and not just restate the denials of the answer. Your Affidavit becomes evidense in the case and if it creates triable issues a SJ cannot be issued by law.

 

 

Thank You very much I will do just that.

 

Should I file the Affidavit as an exhibit with the Opposition to Motion for Summary Judgement or on it's own?

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Thank You very much I will do just that.

 

Should I file the Affidavit as an exhibit with the Opposition to Motion for Summary Judgement or on it's own?

 

As an exhibit to your opposition to MSJ, as it is part of that pleading.

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Thanks nobk4me,

Do you think this would be a breach of contract? I filed my MTC and they still continue to litigate even though the agreement states "any dispute be resolved by binding arbitration. Arbitration replaces the right to go to court."

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Another good case to review is Cap 1 v. Mitchell Rotman 2012-Ohio-480, it's an opinion from the Ohio Court of Appeals released Feb 2012.

Nice find for those of us in Ohio!

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