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LanLanLan

Motion to Compel Private /Contractual Arbitration was DENIED

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Ok! Just came back from hearing on my Motion to Compel Private /Contractual Arbitration was DENIED!

 

After the attorney barked for 15 minutes saying I could not claim anything from a contract a denied having, the judge agreed and said she could not grant me my motion because I denied on my affidavit having an account/contract with Portfolio Recovery Associates or its "assignor" Synchrony Bank (old navy credit card).

 

What is next? Is it to late to file MSJ to get the case dismissed?

 

Here is some background:

 

Being sued by Portfolio Recovery Associates (Synchrony Bank - Old Navy Credit Card) for $2.589, last paid on April 2013 (Michigan SOL is 6 years)

 

05/11/2015 - Summons and Complaint Filed

was served end of June 2015

07/12/2015 - I answered my complaint denying ever having such account

08/28/2015 - Ordered Mediation (didn't settle as the JDB offered to take off about $300 from the amount allegedly owned)

09/28/2015 - Plaintiff filed Motion for Summary Disposition

10/05/2015 - Defendants Brief in Opposition to Plaintiff Motion for Summary Disposition filed

11/02/2015 - Hearing where judge gave me 48 hours to file Affidavit denying Plaintiff claims

11/02/2015 - Defendant filed Affidavit Denying Plaintiff's Claim

11/05/2015 - Plaintiff Motion for Summary Disposition DENIED :)

11/06/2015 - Defendant's Motion to Compel Private/Contractual Arbitration filed

11/30/2015 - Defendant's Motion to Compel Private / Contractual Arbitration DENIED :(

 

 

 

 

 

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If it were me I would file a MSJ based on the fact that by denying the MTC based on saying you were not a party to the contract then the suit against you is improper.  I might even file a counter claim against PRA for filing as well.

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If it were me I would file a MSJ based on the fact that by denying the MTC based on saying you were not a party to the contract then the suit against you is improper.  I might even file a counter claim against PRA for filing as well.

Thank you Clydesmom! 

 

I have been trying to find a sample of a MSJ but it seems that there is none available online!

 

I have to say I felt like I was losing my battle at the court room this morning! 

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If it were me I would file a MSJ based on the fact that by denying the MTC based on saying you were not a party to the contract then the suit against you is improper.  I might even file a counter claim against PRAClydesmom, 

Clydesmom, you said if it was you, you would file MSJ. Should I wait for the discovery process first? 

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Clydesmom, you said if it was you, you would file MSJ. Should I wait for the discovery process first? 

No.  There is no need for discovery if PRA is denying any contract.  If you asked for ARB, and they denied it because they say there is no contract (even if it is because you denied having the account) Then PRA should have produced the contract.  If you file a MSJ because there is no contract, therefore a suit is improper, their only response would be to produce the contract.  Then you bring up your compel again, as the ARB agreement is going to be in the contract.

 

IN your MSJ you need to find some case law that supports your position.  Look for law that says it must be dismissed as a matter of law when there is no contract. key words in your search would be not party to a contract, etc.  You can search on google scholar.

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Everyone, based upon the OP's first post, PRA did NOT deny having a contract with the OP.   It was the OP who denied having a contract with PRA.

 

As a result, PRA objected to the MTC arbitration based upon the OP depending upon a contract he claims doesn't exist.

 

@LanLanLan

 

Did PRA actually say that the there's no contract between you and them?  Or did they say that YOU said there's no contract between you and them?

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This case may be useful for you.  The fact that you denied having an account in your answer is not relevant in deciding whether the court should grant your motion to compel arbitration.   What is relevant is whether a valid contract to arbitrate exists between the parties.  If such a contract exists, then the MTC should be granted.

 

https://scholar.google.com/scholar_case?case=7488325688506699796&q=motion+to+compel+arbitration&hl=en&as_sdt=4,23

 

 

Defendants raise only one issue on appeal. They argue that plaintiff signed a "Partners and Principals Agreement" containing a valid arbitration clause and, therefore, that the trial court erred in denying their motion to compel arbitration. We agree.

We review a trial court's grant or denial of a motion for summary disposition pursuant to MCR 2.116©(7) de novo to determine whether the moving party was entitled to judgment as a matter of law. Limbach v. Oakland Co. Bd. of Co. Rd. Comm'rs, 226 Mich.App. 389, 395, 573 N.W.2d 336 (1997). The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich.App. 576, 580, 538 N.W.2d 686 (1995). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Id. Any doubts about the arbitrability of an issue should be resolved in favor of arbitrationId

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From "Altobelli v. Hartmann," Mich Crt of App. (2014)

 

This Court has previously set forth the basic standards to determine whether a party is compelled to seek arbitration as follows:

The existence of an 
arbitration
 agreement and the enforceability of its terms are judicial questions for the court, not the arbitrators. The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties. To ascertain the arbitrability of an issue, [a] court must consider whether there is an 
arbitration
 provision in the parties' contract, whether the disputed issue is arguably within the 
arbitration
 clause, and whether the dispute is expressly exempt from 
arbitration
 by the terms of the contract. The court should resolve all conflicts in favor of 
arbitration
. However, a court should not interpret a contract's language beyond determining whether 
arbitration
 applies and should not allow the parties to divide their disputes between the court and an arbitrator. [
; 690 NW2d 528 (2004) (quotation marks and internal citations omitted).]

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@debtzapper

 

This case may be useful for you.  The fact that you denied having an account in your answer is not relevant in deciding whether the court should grant your motion to compel arbitration.   What is relevant is whether a valid contract to arbitrate exists between the parties.  If such a contract exists, then the MTC should be granted.

 

 

 

I agree with that.   My point was that some were saying that the OP should file his own MSJ based upon the fact that there's no contract.

 

Based upon the OP's post, PRA didn't make that claim.   PRA said the OP made that claim.   In other words, PRA was saying that the OP couldn't request arbitration on a contract he says doesn't exist. 

 

However, PRA did not deny the existence of a contract.  They merely argued the OP denied the contract.  Since PRA did NOT deny the contract's existence, the judge should have ruled in favor of the contract. 

 

As a result, this might call for an interlocutory appeal, not a summary judgment motion.  The OP needs to read his rules and court rulings.

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@debtzapper

 

 

 

I agree with that.   My point was that some were saying that the OP should file his own MSJ based upon the fact that there's no contract.

 

Based upon the OP's post, PRA didn't make that claim.   PRA said the OP made that claim.   In other words, PRA was saying that the OP couldn't request arbitration on a contract he says doesn't exist. 

 

However, PRA did not deny the existence of a contract.  They merely argued the OP denied the contract.  Since PRA did NOT deny the contract's existence, the judge should have ruled in favor of the contract. 

 

As a result, this might call for an interlocutory appeal, not a summary judgment motion.  The OP needs to read his rules and court rulings.

Well said.

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I would file an interocutory appeal immediately.  The judge was wrong to deny arbitration.

 

Using the good case law @debtzapper posted I would argue that it does not matter if I denied ever having an account with the JDB.  The JDB is suing me based on an OC contract they allegedly purchased.  That contract has an arb clause and I am entited to arb (see ATT Mobility v Conception, USA Supreme Court). 

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Everyone, based upon the OP's first post, PRA did NOT deny having a contract with the OP.   It was the OP who denied having a contract with PRA.

 

As a result, PRA objected to the MTC arbitration based upon the OP depending upon a contract he claims doesn't exist.

 

@LanLanLan

 

Did PRA actually say that the there's no contract between you and them?  Or did they say that YOU said there's no contract between you and them?

They said, I claimed I had no contract!  So how come now I want to use the contract I claimed never existed!

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Let me clarify what the judge said to me when denied my motion to compel:

 

She said, since on my affidavit I denied having an account with PRA, or its assignor, it means I had no contract with them, therefore I could not claim the arbitration.

 

the grumpy attorney just barked how at one time I claim I had no account/contract, and now I want to use to contract to elect arbitration. That is it!

 

To how things went during my hearing I really doubt the judge would grant me arbitration with an appeal!?

 

So a MSJ would be a waste of time at this point? 

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@LanLanLan  @fisthardcheese

 

I posted this yesterday in Lan's other thread. http://www.creditinfocenter.com/community/topic/326838-affidavit-of-denial-of-debt/

 

@LanLanLan @shellieh98

 

Read carefully the following section of the Agreement you quoted in post #18:

What claims are subject to arbitration

  1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account, except as noted below.
  2. We will not require you to arbitrate: (1) any individual case in small claims court or your state's equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
  3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

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@LanLanLan  @fisthardcheese

 

I posted this yesterday in Lan's other thread. http://www.creditinfocenter.com/community/topic/326838-affidavit-of-denial-of-debt/

 

@LanLanLan @shellieh98

 

Read carefully the following section of the Agreement you quoted in post #18:

What claims are subject to arbitration

  1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Gap Inc. if it relates to your account, except as noted below.
  2. We will not require you to arbitrate: (1) any individual case in small claims court or your state's equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.
  3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

 

Thank you brotherskeeper! I am so sorry for my ignorance, but I read It 100 times and I am still trying to figure out what does the bold section means to me!

If the judge said since I claim I never signed a contract with them, I can't use the contract I claim no to have to select arbitration!

 

Again, sorry for lack of understanding and thank you so much for you help!

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Let me clarify what the judge said to me when denied my motion to compel:

 

She said, since on my affidavit I denied having an account with PRA, or its assignor, it means I had no contract with them, therefore I could not claim the arbitration.

 

the grumpy attorney just barked how at one time I claim I had no account/contract, and now I want to use to contract to elect arbitration. That is it!

 

To how things went during my hearing I really doubt the judge would grant me arbitration with an appeal!?

 

So a MSJ would be a waste of time at this point? 

 

The appeal will go to a higher court.  One that hopefully has more sense that the one that made a bad decision based on an elementary argument.

 

Yes, you claim to have no agreement with the JDB, but that is irrelevant because the JDB claims to have an agreement that they are suing on.  That agreement contains arbitration and you have a right to use it.

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@Brotherskeeper  Am I understanding that this basically says " A court can't decide if Arbitration applies to this contract...only an arbitrator" ?

 

No, it says the opposite.  It says only an arbitrator can decided who the contract applies too.  According to the contract, the court does not have the authority to say the defendant may not use the contract to ask for arbitration, only an arbitrator may say it does not apply to him.

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There has been a continuing debate on whether one should answer first and then motion to compel arb or just motion to compel arb in lieu of an answer.  Here, if the law permitted it (and some states do not permit a motion to compel in lieu of an answer), the judge could not have made the twisted ruling he did here.  

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@debtzapper Great point. I think we are learning more and more that when the court rules allow for a motion to be filed in lieu of an answer, it is likely best to simply file an MTC and no answer.

 

I understand that OP was likely unaware of this with no previous experience, but another thing I would have done immediately after both their attorney AND the judge said that they are taking my word for it that no contract exists, I would have asked the judge for a directed verdict.  I would have loved to see how the judge would try to walk back his statement that when I claim no contract I was right.  If he denied my directed verdict, I would ask how he can deny a judgement in my favor by saying I may be a party to the contract, yet deny my MTC because I claim I am not a party to the contract.  It can't be both.

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@debtzapper Great point. I think we are learning more and more that when the court rules allow for a motion to be filed in lieu of an answer, it is likely best to simply file an MTC and no answer.

 

I understand that OP was likely unaware of this with no previous experience, but another thing I would have done immediately after both their attorney AND the judge said that they are taking my word for it that no contract exsists, I would have asked the judge for a directed verdict.  I would have loved to see how they judge would try to walk back his statement that when I claim no contract I was right.  If he denied my directed verdict, I would ask how he can deny a judgement in my favor by saying I may be a party to the contract, yet deny my MTC because I claim I am not a party to the contract.  It can't be both.

I was indeed completely unaware! 

That is why I am planning on filling a MSJ and use among other other things, the fact that my motion to compel was denied as the judge understood based on my affidavit there was no contract!

 

I hate this entire thing! everytime I go to the court house I feel my heart coming out of my mouth! 

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I always say file the Motion to Dismiss, AND Motion to Compel Arb, for several reasons, this being one.  I believe most of the states allow a Motion to Dismiss in lieu of an answer, there are many that do not allow just a Motion to compel in lieu, but they do allow a Motion to dismiss.  Even if you combine them, the judge has to rule on both motions when presented.  The MTD saves you from filing an answer, the MTC gets you to arb.

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I always say file the Motion to Dismiss, AND Motion to Compel Arb, for several reasons, this being one.  I believe most of the states allow a Motion to Dismiss in lieu of an answer, there are many that do not allow just a Motion to compel in lieu, but they do allow a Motion to dismiss.  Even if you combine them, the judge has to rule on both motions when presented.  The MTD saves you from filing an answer, the MTC gets you to arb.

I wish I had your knowledge through all this :)

 

Should Motion to Dismiss be filed now? Or just MSJ?

 

Thanks!

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@LanLanLan I think there are 2 choices.

1. Motion to reconsider--this would go to the same judge that denied your motion.  You could include the case law that DZ posted, basically you are telling the judge why you think this motion should be reconsidered.

 

2.  interlocutory appeal.  This goes to a higher court to rule on this one issue, then sends it back to the court you are in.

 

Some states say you have to do the motion to reconsider first, but I do not know if your state does.  If you want it to go to a different judge, file the Interlocutory appeal.

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@LanLanLan I think there are 2 choices.

1. Motion to reconsider--this would go to the same judge that denied your motion.  You could include the case law that DZ posted, basically you are telling the judge why you think this motion should be reconsidered.

 

2.  interlocutory appeal.  This goes to a higher court to rule on this one issue, then sends it back to the court you are in.

 

Some states say you have to do the motion to reconsider first, but I do not know if your state does.  If you want it to go to a different judge, file the Interlocutory appeal.

I am in Michigan!

 

I will try to find a sample I can use to write my own Motion to reconsider.  As you might have noticed I am clueless  :waah:

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