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LanLanLan

Motion to Compel Private /Contractual Arbitration was DENIED

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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. [Fromm v MEEMIC Ins. Co, 264 Mich App 302, 305-306; 690 NW2d 528 (2004) (quotation marks and internal citations omitted).]

@debtzapper Thank you so much for all your collaboration on this! I will search for a sample/format to write my motion to reconsider my choice for arbitration!

 

I am about to have a heart attack with all that stress :(

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@debtzapper Thank you so much for all your collaboration on this! I will search for a sample/format to write my motion to reconsider my choice for arbitration!

 

I am about to have a heart attack with all that stress :(

 

@LanLanLan

 

Research and think carefully before filing a motion to reconsider. You must meet pretty strict standards under MCR 2.119(F)(3). (Caveat: IANAL)  You must demonstrate palpable error and/or new facts that you could not have raised in your MTC. Unless/until you are on solid ground here, you will likely be viewed as wasting judicial resources. 

 

Sample motion:

http://www.michigan-appeal-attorney.com/Class-Action-Law-Suit-Okrie-v-State-of-Michigan/Plaintiffs-Motion-for-Reconsideration.shtml

 

Sample reply:

https://www.mackinac.org/archives/2010/ReplyToMotion.pdf

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@LanLanLan

 

See Section 3.2 Reconsideration or Rehearing of Judge's Benchbook of Civil Procedings:

http://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Civil.pdf

 

'MCR 2.119(F) does not restrict the court’s discretion to hear or consider motions it has already denied. Smith v Sinai Hosp of Detroit, 152 Mich App 716, 722‐723 (1986). The rule merely provides guidance to the court on when it may deny motions for reconsideration or rehearing. Smith, supra at 723.

 

Generally, a motion for rehearing or reconsideration that merely presents the same issue ruled on by the court, either expressly or by reasonable implication, will not be granted. MCR 2.119(F)(3). However, this “rule does not categorically prevent a trial court from revisiting an issue even when the motion for reconsideration presents the same issue already ruled upon; in fact, it allows considerable discretion to correct mistakes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750, 754 (2014).

 

“The purpose of MCR 2.119 is to allow a trial court to immediately correct any obvious mistakes it may have made in ruling on a motion, which would otherwise be subject to correction on appeal, but at a much greater expense to the parties. The time requirement for filing a motion for reconsideration or rehearing insures that the motion will be brought expeditiously.” Bers v Bers, 161 Mich App 457, 462 (1987) (citation omitted).'

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@LanLanLan

 

See Section 3.2 Reconsideration or Rehearing of Judge's Benchbook of Civil Procedings:

http://courts.mi.gov/education/mji/Publications/Documents/Circuit-Court-Civil.pdf

 

'MCR 2.119(F) does not restrict the court’s discretion to hear or consider motions it has already denied. Smith v Sinai Hosp of Detroit, 152 Mich App 716, 722‐723 (1986). The rule merely provides guidance to the court on when it may deny motions for reconsideration or rehearing. Smith, supra at 723.

 

Generally, a motion for rehearing or reconsideration that merely presents the same issue ruled on by the court, either expressly or by reasonable implication, will not be granted. MCR 2.119(F)(3). However, this “rule does not categorically prevent a trial court from revisiting an issue even when the motion for reconsideration presents the same issue already ruled upon; in fact, it allows considerable discretion to correct mistakes.” Macomb Co Dep’t of Human Servs v Anderson, 304 Mich App 750, 754 (2014).

 

“The purpose of MCR 2.119 is to allow a trial court to immediately correct any obvious mistakes it may have made in ruling on a motion, which would otherwise be subject to correction on appeal, but at a much greater expense to the parties. The time requirement for filing a motion for reconsideration or rehearing insures that the motion will be brought expeditiously.” Bers v Bers, 161 Mich App 457, 462 (1987) (citation omitted).'

I just read it, and the only thing I had to argue is that I am claiming to use the same contract the plaintiff is using to sue me! Of course I could have said that during my hearing yesterday, but that never crossed my mind.

 

So in general I am to file a motion for reconsideration based only on an argument that didn't cross my mind on the first hearing!

 

I also don't want to upset the judge,as she has been pretty nice to me so far! (during my hearing to answer the plaintiff's motion for summary disposition, she gave me 48 hours to file my affidavit denying plaintiff's complaints).

 

Should I go ahead? Better, if it was your case, would you go ahead and file a motion for consideration?

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I just read it, and the only thing I had to argue is that I am claiming to use the same contract the plaintiff is using to sue me! Of course I could have said that during my hearing yesterday, but that never crossed my mind.

 

So in general I am to file a motion for reconsideration based only on an argument that didn't cross my mind on the first hearing!

 

I also don't want to upset the judge,as she has been pretty nice to me so far! (during my hearing to answer the plaintiff's motion for summary disposition, she gave me 48 hours to file my affidavit denying plaintiff's complaints).

 

Should I go ahead? Better, if it was your case, would you go ahead and file a motion for consideration?

 

I think I would opt for the interlocutory appeal just to get a judge from a higher court to look at this.

 

If you go with the motion to reconsider, I would state my argument as that I do not deny at one time in the past having an agreement with the OC bank, rather my denial is that the plaintiff JDB is not proper party in interest on this account and does not have standing.  However, since plaintiff is asserting their claim against me using this agreement, it is within my right to invoke the arbitration clause contained therein.

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Here's a list of the states that allow a plaintiff to voluntarily dismiss its complaint without prejudice and without an order of the court and agreement by the defendant as long as the dismissal occurs before an answer or motion for summary judgment has been filed.

 

Alabama
Alaska
Arizona
Colorado
Delaware
Hawaii
Idaho
Indiana
Kansas
Kentucky
Maine
Massachusetts
Michigan
Minnesota
Mississippi
Montana
Nevada
New Jersey
New Mexico
North Dakota
Rhode Island
South Carolina
South Dakota
West Virginia
Wyoming

 

Note that each poster must determine what his court deems to be an "answer".   In other words, he must find out if a MTC arbitration is considered the same as an answer.  It's not in all courts.
 

The plaintiff could bypass the defendant and file a MTD without prejudice with the court.  However, if the plaintiff prefers an agreement with the defendant, and if the defendant wants any possible leverage as to how the complaint is dismissed (with prejudice, deletion of credit report entry, etc.), he should file an answer along with his MTC arbitration. 

 

If the defendant doesn't care about leverage, then an answer wouldn't be necessary.

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I think I would opt for the interlocutory appeal just to get a judge from a higher court to look at this.

 

If you go with the motion to reconsider, I would state my argument as that I do not deny at one time in the past having an agreement with the OC bank, rather my denial is that the plaintiff JDB is not proper party in interest on this account and does not have standing.  However, since plaintiff is asserting their claim against me using this agreement, it is within my right to invoke the arbitration clause contained therein.

 

 @LanLanLan 's judge ordered her/him to submit an affidavit denying this debt. We don't know if that affidavit also denied having an account with plaintiff's assignor. Two affidavit exemplars were offered in OP's other thread, so knowing the language used would be important to prevent @LanLanLan from contradicting her/himself under oath.

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 @LanLanLan 's judge ordered her/him to submit an affidavit denying this debt. We don't know if that affidavit also denied having an account with plaintiff's assignor. Two affidavit exemplars were offered in OP's other thread, so knowing the language used would be important to prevent @LanLanLan from contradicting her/himself under oath.

here is exactly what went to on my affidavit filed on November 2nd, 2015, as you can see I did deny having any contract with the plaintiff and its assignor.

 

DEFENDANT'S AFFIDAVIT DENYING PLAINTIFF'S CLAIMS

 of Breach of Contract, Account Stated, and Unjust Enrichment.

 

NOW COMES Defendant in Pro Per, XXXXXX, whose residence is XXXXXX, XXXXX - Michigan, certifies and says the following:

1. I am a resident of the State of Michigan, and I am a competent person over 18 years of age. This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

2. I am unaware of Account number ending in 5121 with Plaintiff or Plaintiff’s assignor as stated in the Plaintiff’s complaint.

3. I am unaware of the alleged payments and charges made to the alleged account as stated by the Plaintiff.

4. I have never received statements from the Plaintiff or Plaintiff's assignor, or have made payments towards the alleged account, as stated in the Plaintiff's complaint/affidavit.

5. I deny that I signed a contract for credit services with the plaintiff or its assignor.

6. I deny I am liable to the plaintiff in this case for the amount sued.

I certify under penalty of perjury that the foregoing statements are true and correct.

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@LanLanLan

 

I'm just curious.  Did you open the account?   Would your own bank records show that you made payments?

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@LanLanLan

 

#3 --You don't explicitly deny making charges or payments to the alleged account, which would indicate use and acceptance of the contract; you only swear you are "unaware" of "alleged payments and charges made to the alleged account as stated by the Plaintiff.

 

#4 --"I have never received statements from the Plaintiff or Plaintiff's assignor, or have made payments towards the alleged account, as stated in the Plaintiff's complaint/affidavit. Here you appear to deny having made payments, or receiving statements as stated in Plaintiff's complaint/affidavit. Is Plaintiff's assignor as stated in the complaint incorrect?

 

#5 -- "I deny that I signed a contract for credit services with the plaintiff or its assignor."  Here you deny you "signed" a contract for "credit services"; you don't explicitly deny entering into a contract.  

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@LanLanLan

 

#3 --You don't explicitly deny making charges or payments to the alleged account, which would indicate use and acceptance of the contract; you only swear you are "unaware" of "alleged payments and charges made to the alleged account as stated by the Plaintiff.

 

#4 --"I have never received statements from the Plaintiff or Plaintiff's assignor, or have made payments towards the alleged account, as stated in the Plaintiff's complaint/affidavit. Here you appear to deny having made payments, or receiving statements as stated in Plaintiff's complaint/affidavit. Is Plaintiff's assignor as stated in the complaint incorrect?

 

#5 -- "I deny that I signed a contract for credit services with the plaintiff or its assignor."  Here you deny you "signed" a contract for "credit services"; you don't explicitly deny entering into a contract.  

PRA names Synchrony Bank as their assignee in the complaint!

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@LanLanLan

 

Why was your JDB's motion for summary dispositon denied? What did your judge say?

on my answer, I denied having that account! SO during our hearing she asked me again, and I denied again. That is when she gave me 48 hours to file an affidavit denying plaintiff's claim. She told me and the plaintiff's attorney that if I filed my affidavit of denial within 48 hours she would deny the JDB summary disposition, and she did. She didn't explain why!

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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" ?

 

I am not a lawyer, but I read this to mean that only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of the section titled, "What claims are subject to arbitration," or "any part thereof" of that section on arbitration. 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.

 

IANAL, but it appears to me from what Lan wrote about the judge's reasoning to deny the MTC was not to decide on a claim subject to arbitration, but rather that Lan denied entering into the "Agreement as whole," and could not avail her/himself of the right to arbitration. I'll bet  @fisthardcheese  could draft a very good argument that this judge was not the proper individual to decide this. 

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I am not a lawyer, but I read this to mean that only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of the section titled, "What claims are subject to arbitration," or "any part thereof" of that section on arbitration. 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.

 

IANAL, but it appears to me from what Lan wrote about the judge's reasoning to deny the MTC was not to decide on a claim subject to arbitration, but rather that Lan denied entering into the "Agreement as whole," and could not avail her/himself of the right to arbitration. I'll bet  @fisthardcheese  could draft a very good argument that this judge was not the proper individual to decide this.

@Brotherskeeper that is exactly why the judge denied my MTC. She read my affidavit, and mentioned I was denying having a contract with plaintiff or its assignor.

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on my answer, I denied having that account! SO during our hearing she asked me again, and I denied again. That is when she gave me 48 hours to file an affidavit denying plaintiff's claim. She told me and the plaintiff's attorney that if I filed my affidavit of denial within 48 hours she would deny the JDB summary disposition, and she did. She didn't explain why!

 

IANAL--but it appears they did not show an absence of material issues--no contract, no affidavit as prima facie evidence of an account stated (once your affidavit of denial was submitted), and if their MSD was brought under MCR 2.116( C )(9), your denials stated valid defenses to their claims in your answer and affidavit.

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IANAL--but it appears they did not show an absence of material issues--no contract, no affidavit as prima facie evidence of an account stated (once your affidavit of denial was submitted), and if their MSD was brought under MCR 2.116( C )(9), your denials stated valid defenses to their claims in your answer and affidavit.

Here is what it says on their MSD:

 

9. Pursuant to MCR 2.116 © (9), defendant has failed to statet a valid defense to plaintiff's cause of action.

10. Pursuant to MCR 2.116 © (10), there is no genuine issue as to any material  fact, and plaintiff is entitled to judgement by law. 

 

As I mentioned earlier, on the day of the MSD hearing, the judge gave 48 hours to file an affidavit denying the complaints, and later denied the JDB MSD.

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Here is what it says on their MSD:

 

9. Pursuant to MCR 2.116 © (9), defendant has failed to statet a valid defense to plaintiff's cause of action.

10. Pursuant to MCR 2.116 © (10), there is no genuine issue as to any material  fact, and plaintiff is entitled to judgement by law. 

 

As I mentioned earlier, on the day of the MSD hearing, the judge gave 48 hours to file an affidavit denying the complaints, and later denied the JDB MSD.

I forgot to mention, that their affidavit have been issued more than 10 days prior to filing. I pointed to it on my answer, as well!

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I forgot to mention, that their affidavit have been issued more than 10 days prior to filing. I pointed to it on my answer, as well!

 Yes, MCL 600.2145. Thank goodness your judge gave you the opportunity to file that affidavit. Others here have not been so lucky--even with a properly compliant counteraffidavit filed with their answer! Judge is often the wild card. 

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@LanLanLan

 

That's terrific for you! What is next on your court schedule? Case evaluation? Or Trial? 

I have no idea what is next! I guess we will go to trial?!?!?! I remember the word "discovery" being sad, but I was so nervous, with my heart pounding in my head, that I can barely remember. I was only asked to file an "order" for denying defendant's motion for compel arbitration.

 

I just want it all to end! I don't if I just sit and wait for trial, or if I file a motion for reconsideration, or MSJ.

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@LanLanLan

 

MCL 691.1686  Validity of Agreement to Arbitrate

 

(2) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.

 

Is PRA suing for breach of contract or account stated?

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