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LanLanLan

Motion to Compel Private /Contractual Arbitration was DENIED

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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?

Breach of contract, Account Stated, and Unjust Enrichment

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@LanLanLan

 

Since they claim a contract does exist, it doesn't matter that you denied the existence of the contract.  Based upon PRA's allegation that a contract does exist and MCL 691.1686(2), the judge should have determined as to whether there's a valid agreement to arbitrate.

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^^^ that's what I'm saying. If it's denied based o op denial of the contract, if he did the MSJ the JDB would need to produce the contract. ALL OF SYNCRONYS agreements have Arb with JAMS.

I don't want to confuse the issue. The court errored in this decision, so what would be the best coarse of action? Reconsideration.. Appeal... Or MSJ. EITHER WAY, No matter which way it should make the court either favor Arb, OR the JDB produce the contract. ( as their "issue of material fact" ) ..they produce the agreement, ummmm ok, Arb with jams is in there. Idk the best coarse....discuss

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@LanLanLan

 

Since they claim a contract does exist, it doesn't matter that you denied the existence of the contract.  Based upon PRA's allegation that a contract does exist and MCL 691.1686(2), the judge should have determined as to whether there's a valid agreement to arbitrate.

 

691.1687 Order to compel or stay arbitration. https://www.legislature.mi.gov/(S(54cner45hyhdlm55sbtmtaie))/documents/mcl/pdf/mcl-Act-371-of-2012.pdf

Sec. 7. (1) On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate under the agreement, the court shall do both of the following:

     (a) If the refusing party does not appear or does not oppose the motion, order the parties to arbitrate.

     ( b ) If the refusing party opposes the motion, proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

 

(2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(3) If the court finds that there is no enforceable agreement, it shall not order the parties to arbitrate under subsection (1) or (2).

(4) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

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I'm wondering if the judge actually ruled or meant that the OP waived his right to compel arbitration because he denied the existence of a contract.

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Does this small claims court allow a de novo appeal once the case is completed?  If the rules allow for a de novo appeal, I would continue on to a trial and throw every argument you can come up with (even rediculous ones) and wait for the judge to inevitably rule in favor of his golfing buddy.  Then I would use my de novo appeal and refile my MTC with the higher court.

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LanLanLan

Posted 02 November 2015 - 01:06 PM

shellieh98, on 02 Nov 2015 - 11:51 AM, said:snapback.png

Answer these questions if you want further help with this suit against you.

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Weber & Olcese

3. How much are you being sued for? $2.589

4. Who is the original creditor? (if not the Plaintiff) GE Capital (Old Navy Credit Card)

5. How do you know you are being sued? (You were served, right?) Served

6. How were you served? (Mail, In person, Notice on door) - in person at home

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None. I have never been contacted by Portfolio Recovery before the lawsuit

9. What state and county do you live in? Michigan, Ottawa county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) - April 2013

11. What is the SOL on the debt? To find out: 6 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Just had a hearing this morning to go over Plaintiff's Motion for Summary Disposition

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I already responded the suit. I had 21 days.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Copy of statements showing purchases, and payments. Bill of sale, Print our  with my name, last four numbers of my SS, and an notarized Affidavit signed by Portfolio staff (Harry Munel).

 

Here are the answers @LanLanLan posted in his/her other thread. @fisthardcheese look at # 13--the debt was disputed to CRAs (if accurate) for both OC and JDB.

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LanLanLan

Posted 02 November 2015 - 01:06 PM

shellieh98, on 02 Nov 2015 - 11:51 AM, said:snapback.png

Here are the answers @LanLanLan posted in his/her other thread. @fisthardcheese look at # 13--the debt was disputed to CRAs (if accurate) for both OC and JDB.

 

I disputed the account the JDB posted as an open account! SInce I have never had an account with Portfolio I disputed as a false account!

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I'm wondering if the judge actually ruled or meant that the OP waived his right to compel arbitration because he denied the existence of a contract.

after the judge read me affidavit, she looked at me and said:

 

"on your affidavit you say you haven't sign a contract, that is why I can't grant you the motion. do you understand why?"

 

And in my entire dumbness I said YES!!!!

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Does this small claims court allow a de novo appeal once the case is completed?  If the rules allow for a de novo appeal, I would continue on to a trial and throw every argument you can come up with (even rediculous ones) and wait for the judge to inevitably rule in favor of his golfing buddy.  Then I would use my de novo appeal and refile my MTC with the higher court.

 

http://courts.mi.gov/Self-help/center/casetype/Pages/SmallClaimsSH.aspx

  • If you want to reserve the right to appeal any adverse decision to the circuit court, you must demand that the case be removed from the small claims division to the regular district court. See MCL 600.8408 and form DC 86.
  • Remember, a small claims case will be heard by a district court judge or district court attorney magistrate; you have no right to a jury trial, and the trial will not be recorded.
  • Removal from Small Claims
    Either party has the right to ask that the case be heard in the general civil division of the district court. If you want to have the case moved to the general civil division of the district court, you can complete the Demand and Order for Removal, Small Claims (form DC 86), print it, and bring it to the court before or on the day of the trial. You must file the form with the court clerk. The court will notify the person filing the lawsuit if the defendant makes such a request.
     
    In the general civil division of the district court, both the plaintiff and the defendant have the right to be represented by an attorney. Either party may also request a removal from the small claims division orally at the trial, without the need for a writing. See MCL 600.8408.

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Is the judge a magistrate or a district court judge?

 

Link to: REVISED JUDICATURE ACT OF 1961 (EXCERPT)

Act 236 of 1961
Chapter 84
SMALL CLAIMS DIVISION 

http://www.legislature.mi.gov/(S(i4jefxq2k3jk2klse0ycbzxz))/mileg.aspx?page=getObject&objectName=mcl-236-1961-84

 

600.8412 Waiver of rights.

 

Sec. 8412.

Unless a party removes a small claims action to the district court pursuant to section 8408(4), all parties to an action in the small claims division shall be considered to have waived the right to counsel, the right to trial by jury, the right to recover more than the applicable jurisdictional amount as prescribed by section 8401, and any right of appeal, except that if the action is heard before a district court magistrate pursuant to section 8427, the parties have a right to an appeal to the small claims division of the district court as provided by section 8427. The affidavit prescribed in section 8402 shall contain a statement that the plaintiff understands that he or she has waived these rights.

 

600.8427 Conduct of small claims hearing by district court judge or magistrate; appeal.

 

Sec. 8427.

A small claims hearing may be conducted either by a district court judge or by a district court magistrate who is an attorney licensed to practice in this state and who is authorized to do so by the chief judge of the district court district as provided in section 8514. If the hearing is conducted by a district court magistrate, an appeal de novo as of right may be taken by either party to the small claims division of the district court. Appeal shall be taken within 7 days after the entry of the decision of the magistrate. Further appeal from the judgment of the district court judge shall not be available to either party.

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I disputed the account the JDB posted as an open account! SInce I have never had an account with Portfolio I disputed as a false account!

 

So you never disputed with the CRAs on the original creditor reporting, just PRA? Does the original creditor still show up on your credit reports?

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So you never disputed with the CRAs on the original creditor reporting, just PRA? Does the original creditor still show up on your credit

Just PRA. OC shows on my credit report as charged off, but I never disputed it!

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after the judge read me affidavit, she looked at me and said:

 

"on your affidavit you say you haven't sign a contract, that is why I can't grant you the motion. do you understand why?"

 

And in my entire dumbness I said YES!!!!

 

IANAL, but it appears she meant you denied entering into a contract with the "Plaintiff's Assignor" and therefore were not a party to the contract. Her opinion appears to be if you aren't a party to a contract, you can't enforce its terms.  Actually, you never denied entering into a contract; you denied signing a contract. You don't need to sign a credit card contract to enter into a contract; use of the card is acceptance. You didn't deny using the card. You claimed under oath you were "unaware" of the charges. 

 

For anyone reading along here, what you attest to in your answer and swear to in an affidavit may come back to bite you when you attempt to MTC arbitration. 

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IANAL, but it appears she meant you denied entering into a contract with the "Plaintiff's Assignor" and therefore were not a party to the contract. Her opinion appears to be if you aren't a party to a contract, you can't enforce its terms.  Actually, you never denied entering into a contract; you denied signing a contract. You don't need to sign a credit card contract to enter into a contract; use of the card is acceptance. You didn't deny using the card. You claimed under oath you were "unaware" of the charges. 

 

For anyone reading along here, what you attest to in your answer and swear to in an affidavit may come back to bite you when you attempt to MTC arbitration. 

That is what I afraid of!

 

If I keep pushing the signed/entered or not signed/entered the contract issue I might put myself in even hotter waters than I am now!  ::drowning::

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IANAL, but it appears she meant you denied entering into a contract with the "Plaintiff's Assignor" and therefore were not a party to the contract. Her opinion appears to be if you aren't a party to a contract, you can't enforce its terms.  Actually, you never denied entering into a contract; you denied signing a contract. You don't need to sign a credit card contract to enter into a contract; use of the card is acceptance. You didn't deny using the card. You claimed under oath you were "unaware" of the charges. 

 

Whether a defendant says "sign" or "enter", he means he didn't have a contract with the other party.  I'm thinking that if a defendant tries parsing his words (sign vs. enter), a judge wouldn't be happy. 

 

The problem here is that there's case law that says what a judge should do if the party opposing arbitration denies the existence of an agreement to arbitrate.  It may be more difficult to find supporting case law when the party requesting arbitration has previously denied the existence of a contract between the parties, then turns around and wants to take advantage of that "non-existent contract".

 

Note that in his affidavit, he also said he didn't have a contract with the plaintiff's assignor (which I assume would be the OC).  In addition, while he said he was "unaware" of charges and payments to the account, he the denied making payments.  That could be considered contradictory or an implication of ID theft.

 

For anyone reading along here, what you attest to in your answer and swear to in an affidavit may come back to bite you when you attempt to MTC arbitration.

 

 

Very true.

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After reading all the posts I am getting to the conclusion that filing a reconsideration for MTC might be too risky!

 

I had no idea what MTC was when I filed my affidavit denying plaintiff claims! Maybe I would have done differently I knew any better!

 

Now I can't go back!!!

 

At this point, I am guessing my best bet would be file MSJ or just sit back and wait for trial!

 

Suggestions???

 

I have to say I never though I would find so many caring people online, that are willing to take their time to write suggestions, and share their knowledge to someone they don;t know! I will be forever thankful for everyone of you!

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@LanLanLan

 

I know this makes you feel like you're caught between a rock and a hard place.  Believe me, many of us have felt that way.

 

I'm wondering if you should file a motion for clarification on the judge's ruling.   We really don't know why the judge ruled as she did.   I don't believe that she ruled that no contract existed between the parties.  But she might have.

It's also possible she was hinting that you waived your right to arbitration because of your claim that there's no contract.  

 

Getting an explanation for her ruling would help you determine if you should file an MSJ or appeal.

 

@fisthardcheese what do you think?

 

BTW, in reference to my questions in post #34, I was not being catty.  It has to do with what we attest to in an affidavit.  If you had to continue in court, and it could proven that you made payments, your statements in the affidavit would cast doubt on your credibility.

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@LanLanLan

 

I know this makes you feel like you're caught between a rock and a hard place.  Believe me, many of us have felt that way.

 

I'm wondering if you should file a motion for clarification on the judge's ruling.   We really don't know why the judge ruled as she did.   I don't believe that she ruled that no contract existed between the parties.  But she might have.

It's also possible she was hinting that you waived your right to arbitration because of your claim that there's no contract.  

 

Getting an explanation for her ruling would help you determine if you should file an MSJ or appeal.

 

@fisthardcheese what do you think?

 

BTW, in reference to my questions in post #34, I was not being catty.  It has to do with what we attest to in an affidavit.  If you had to continue in court, and it could proven that you made payments, your statements in the affidavit would cast doubt on your credibility.

Thank you BV80!

 

I knew you were not being catty :)

 

I would not provide proofs from my bank account that payments were made, and I don't think JDB can have access to it right?

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@LanLanLan

 

I knew you were not being catty :-)

 

 

Thank you.  :-)

 

I would not provide proofs from my bank account that payments were made, and I don't think JDB can have access to it right?

 

 

Unfortunately, they could have access to your records by filing a motion to compel the production of those records in order to prove that you made payments. 

 

Not all debt collection attorneys are that aggressive, but some are.

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@LanLanLan

 

 

Thank you.  :-)

 

 

Unfortunately, they could have access to your records by filing a motion to compel the production of those records in order to prove that you made payments. 

 

Not all debt collection attorneys are that aggressive, but some are.

Well I hope they don't     ! xhitwallx

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@LanLanLan

 

First things first.  Let's find out what you have to do to get this into arbitration.

 

But, even if arbitration is not granted, there's no guarantee they'd compel your bank records.  I'm thinking most JDBs don't do it, but in regard to affidavits, we have to prepare for that possibility.

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@LanLanLan

 

First things first.  Let's find out what you have to do to get this into arbitration.

 

But, even if arbitration is not granted, there's no guarantee they'd compel your bank records.  I'm thinking most JDBs don't do it, but in regard to affidavits, we have to prepare for that possibility.

BV80, since I am a little scared to go ahead with the reconsideration of my motion to compel arbitration, would a MSJ, or Motion to Dismiss, be a mistake at this point?

 

With my affidavit, I am little concerned that a MTC will do more damaged than good! 

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@LanLanLan

 

I'm waiting to hear from @fisthardcheese.

 

1.  A motion to dismiss is usually filed at the beginning of a lawsuit when it's shown that the court has no jurisdiction, the account is outside the SOL, etc. 

 

Again, this might depend on the reason for your judge's ruling.  But, we don't know the reason for her ruling.

 

2.  A court can determine that a motion to dismiss is actually a motion for summary judgment.  But, again, if she didn't rule that there's no contract between the parties, I'm thinking she would deny a MTD or an MSJ.

 

This is why I'm wondering if a Motion for Clarification might help you.  If it's granted, the judge would explain her ruling.  If it's not granted. well...I might go for an appeal.

 

There's MI rulings that say that a party who engages in litigation AND denies the existence of a contract waives their right to arbitration.  However, I haven't found any case law that says the denial of the existence of a contract (alone) waives the right.  That might be an appeal issue.

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