FWM1A

Sued by Midland Funding LLC in Michigan over a debt through Synchrony Bank

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5 minutes ago, FWM1A said:

@Clydesmom - ahhh, okay. Thank you for your help. I will submit it tomorrow then after all (just in preparation for the worst case scenario). 

@FWM1A

Eye on the prize.  A fee waiver with the court isn't merely about saving a $20 motion fee. It's about demonstrating to plaintiff that you qualify due to indigency. You've asked, as per the cc agreement, for plaintiff to pay the fees in arbitration as well. You want to build your case for plaintiff to cut you loose. 

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@Brotherskeeper - I hadn't even really considered that...fantastic point! It shall be submitted tomorrow.  Hopefully I get an answer quickly, though I fail to see how it wouldn't be granted. I have less than $50 in checking. Rough times, guys. :/ I may even submit everything else tomorrow, too, though I want to give it a 10 x over. Already caught a couple screw ups on my end, as per usual, hahah.

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@FWM1A not sure if it's been covered but you can contact JAMS and let them know the normal $250 consumer fee from you will be coming from the Plaintiff as detailed in the cardmember agreement.

With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

http://www.jamsadr.com/rules-consumer-minimum-standards/

 

 

That agreement you linked earlier: http://files.consumerfinance.gov/a/assets/credit-card-agreements/txt/creditcardagreement_11253.txt

You may want to attach the pdf version instead since it looks more legit.

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6 hours ago, Brotherskeeper said:

@FWM1A

Eye on the prize.  A fee waiver with the court isn't merely about saving a $20 motion fee. It's about demonstrating to plaintiff that you qualify due to indigency. You've asked, as per the cc agreement, for plaintiff to pay the fees in arbitration as well. You want to build your case for plaintiff to cut you loose. 

"You want to build your case for plaintiff to cut you loose. "  That says it all.  That's the whole point of defending a debt collection case, whether by litigation or by arbitration:  to make it so expensive, difficult and time-consuming that the other side would rather drop your case and go after easier, less expensive pickings.

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@CCRP626 - I will do so...I assume I send this: http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

to any JAMS location I want from this list: http://www.jamsadr.com/locations/

Can I really pick ANY location? I would bet almost anything that it will never go that far, but I would choose Dallas since I have a friend there and would never be able to afford a hotel. I would like to wait on this to hear the plaintiff's response. With any luck they will drop this, as this alleged debt is really very quite small compared to many I have seen here.

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Yes, that demand form is fine. Double check your cardmember agreement for any extra detail such as asking the Plaintiff to pay the fees.

As far as location- The consumer must have a right to an in-person hearing in his or her hometown area. http://www.jamsadr.com/rules-consumer-minimum-standards/

You'd be under streamlined rules (IF the Plaintiff would pay): http://www.jamsadr.com/rules-streamlined-arbitration/#Rule14 Rule 14. Scheduling and Location of Hearing but you always have those consumer rules in your favor.
 

 

 

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@FWM1A to add to the above- the picture you're portraying as mentioned is you don't have a cent and for them to keep at this will cost. Hearings cost money and Midland doesn't get sent a bill to pay later, they have to pay JAMS upfront.  You would not want to waive any hearings under Rule 18. You want to make sure you get to argue in person. It gives you the best chance to make your case about their sloppy robosigned paperwork and costs them the most.

Rule 18. Waiver of Hearing
The Parties may agree to waive oral Hearing and submit the dispute to the Arbitrator for an Award based on written submissions and other evidence as the Parties may agree.

Rule 13. Exchange of Information  (c) The Parties shall promptly notify JAMS when a dispute exists regarding discovery issues. A conference shall be arranged with the Arbitrator, either by telephone or in person, and the Arbitrator shall decide the dispute.

back to the consumer protections- The consumer must have a right to an in-person hearing in his or her hometown area.

 

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@FWM1A

(IANAL) Did you get the green card back yet from the  arb notice sent to plaintiff's attorney?  Let us know when you do. Please read MCR 2.119 Motion Practice , especially 2.119(D). This section outlines what you need to do next to see if plaintiff will stipulate to a dismissal, and , if not, rules for drafting and filing a MTC.   MCR:

http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/CHAPTER%202.%20CIVIL%20PROCEDURE%20(entire%20chapter).pdf

 

Here is the Michigan Revised Uniform Arbitration Act of 2012.  You'll need this as reference resource for your motion to compel arb. 

https://www.legislature.mi.gov/(S(54cner45hyhdlm55sbtmtaie))/documents/mcl/pdf/mcl-Act-371-of-2012.pdf

691.1685 Request for judicial relief.

     Sec. 5. (1) Except as otherwise provided in section 28, a request for judicial relief under this act must be made by motion to the court and heard in the manner provided by court rule for making and hearing motions.

     (2) Unless a civil action is already pending between the parties, a complaint regarding the agreement to arbitrate must be filed and served as in other civil actions. Notice of an initial motion under this act may be served with the summons and complaint in the manner provided by court rule for the service of a summons in a civil action. Otherwise, notice of the motion must be given in the manner provided by court rule for serving motions in pending actions.      History: 2012, Act 371, Eff. July 1, 2013.

691.1686 Validity of agreement to arbitrate.

     Sec. 6. (1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except on a ground that exists at law or in equity for the revocation of a contract.

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

     (3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.

     (4) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.  History: 2012, Act 371, Eff. July 1, 2013

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@Brotherskeeper - Thank you again! I did not yet receive the green card from the notice to arbitrate. Today I just sent out my Answer (the post office says it should arrive to them by Saturday), and filed my Answer with the court. I also wanted to note for anyone in my situation - the clerk(s) found it very strange that I was submitting a fee waiver. Apparently I was one of the very, very few defendants they had seen file one, and said generally it is only the plaintiffs who submit them. They said the worst that can happen is the judge denies it, so I did submit it anyway. 

Also wanted to say that I spoke to the clerk briefly about junk debt collectors and he said he has never seen Midland move on to arbitrate. That said, he also mentioned that they come after people for less than my alleged debt, so...not all great news. 

I will read through that info you posted and let you know when I get back the certified mail card. Thank you x 1,000,000 Brotherskeeper.

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@FWM1A

I'm so glad you decided to fight! Read up on the next steps. Ask questions.  Push yourself to  get started on the draft motion to compel. Just a friendly tip: don't wait until the last minute. 

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Second that.  You can wait until the last minute to start cramming for a final or to get a paper done for a class,   but don't do that with a court filing.

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6 hours ago, debtzapper said:

Second that.  You can wait until the last minute to start cramming for a final or to get a paper done for a class,   but don't do that with a court filing.

That's a good one. :roflmao: I wish that were the norm. You would not believe how many motions for extension are filed on the date a paper is due. Its like an unwritten rule that you don't start on a brief until the day it's due. (Of course, I'm exaggerating a bit, but that's the way it feels).

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@FWM1A

Here are the Approved Michigan Court fill-in forms you can use or use as a template to draft your own:

http://courts.mi.gov/Administration/SCAO/Forms/Pages/Michigan-Court-Index.aspx

1.)  Request for a Hearing on a Motion:

http://courts.mi.gov/Administration/SCAO/Forms/courtforms/general/mc325.pdf

2.)  Notice of Hearing and Motion:

http://courts.mi.gov/Administration/SCAO/Forms/courtforms/general/mc326.pdf

3.)  Judge's Order:

http://courts.mi.gov/Administration/SCAO/Forms/courtforms/general/mc327.pdf

IANAL. I believe you can draft a Stipulation and [Proposed} Order to send to plaintiff before filing the MTC. If plaintiff agrees, no MTC is necessary. 

 See MCR 2.119(D) Uncontested Orders.

     (1) Before filing a motion, a party may serve on the opposite party a copy of a proposed order and a request to stipulate to the court's entry of the proposed order.

     (2) On receipt of a request to stipulate, a party may 

          (a) stipulate to the entry of the order by signing the following statement at the end of the proposed order: "I stipulate to the entry of the above order";
or
          (b) waive notice and hearing on the entry of an order by signing the following statement at the end of the proposed order: "Notice and hearing on entry of the above order is waived."

A proposed order is deemed rejected unless it is stipulated to or notice and hearing are waived within 7 days after it is served.

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17 hours ago, nascar said:

That's a good one. :roflmao: I wish that were the norm. You would not believe how many motions for extension are filed on the date a paper is due. Its like an unwritten rule that you don't start on a brief until the day it's due. (Of course, I'm exaggerating a bit, but that's the way it feels).

Oh, I know it's that way with the lawyers I've worked or associated with.  And judges oblige them.  But I want a newly-minted pro se to try to have the work done before the deadline.   Makes a pro se look good before the judge and maybe even opposing counsel.

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1 hour ago, debtzapper said:

Oh, I know it's that way with the lawyers I've worked or associated with.  And judges oblige them.  But I want a newly-minted pro se to try to have the work done before the deadline.   Makes a pro se look good before the judge and maybe even opposing counsel.

@debtzapper

Makes a pro se look good on this forum, too. And more likely to receive valuable input from our more knowledgeable, experienced members. 

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On 4/13/2016 at 8:01 PM, CCRP626 said:

@FWM1A not sure if it's been covered but you can contact JAMS and let them know the normal $250 consumer fee from you will be coming from the Plaintiff as detailed in the cardmember agreement.

With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration.

http://www.jamsadr.com/rules-consumer-minimum-standards/

 

 

That agreement you linked earlier: http://files.consumerfinance.gov/a/assets/credit-card-agreements/txt/creditcardagreement_11253.txt

You may want to attach the pdf version instead since it looks more legit.

@CCRP626  @nascar   @fisthardcheese 

This is from the arbitration clause of the 2014 agreement @FWM1A is using. How do you understand the following? 

"2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding."

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1 hour ago, Brotherskeeper said:

@CCRP626  @nascar   @fisthardcheese 

This is from the arbitration clause of the 2014 agreement @FWM1A is using. How do you understand the following? 


"2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding."

2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

 

The party who has asserted the claim(s) in court is the plaintiff.  Therefore, the plaintiff is the party who must commence arbitration. 

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@Brotherskeeper@FWM1A has to send the paperwork into JAMS with any fees under the agreement (no fees since they are to be paid by the Plaintiff). The instructions are on the JAMS demand form. JAMS will then contact the Plaintiff to pay up. Plaintiff will not reply, JAMS will continue to send payment requests. Plaintiff may try to weasel out of arb by the usual claims, such as this isn't the agreement. Keep an eye on any court filings to respond.

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6 minutes ago, BV80 said:

2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

 

The party who has asserted the claim(s) in court is the plaintiff.  Therefore, the plaintiff is the party who must commence arbitration. 

@BV80

Thanks! That's how I understand it. So, if @FWM1A has to motion to compel arb, and it's granted, plaintiff is to intiate the arb.  IANAL, but it would seem that FWM1A does not need to send anything to JAMS prior to  filing a MTC.  

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8 minutes ago, BV80 said:

The party who has asserted the claim(s) in court is the plaintiff.  Therefore, the plaintiff is the party who must commence arbitration. 

Just make sure to specify JAMS in your MTC or the Plaintiff may pick a different arbitrator.

@BrotherskeeperFor the earlier references to the Michigan arbitration act, that should be fine since it probably mirrors the FAA in most areas but if you find a difference, make sure you follow the FAA.

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2 minutes ago, CCRP626 said:

Just make sure to specify JAMS in your MTC or the Plaintiff may pick a different arbitrator.

@BrotherskeeperFor the earlier references to the Michigan arbitration act, that should be fine since it probably mirrors the FAA in most areas but if you find a difference, make sure you follow the FAA.

@CCRP626

Thanks! If I find this somewhat confusing, I can't imagine how a newbie like OP is to make sense of it. @FWM1A sent CMRRR a notification of arb election in JAMS letter to plaintiff prior to submitting his/her answer to court. As I understand the arb clause from the Amazon/Synchrony arb clause, plaintiff is to intiate/commence arb if defendant files a MTC and it is granted.

In your opinion, is there any reason or strategic advantage for  OP defendant to intiate with JAMS prior to filing a MTC? 

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@Brotherskeeper I forgot to mention, if the Judge is writing the order, make sure it specifies JAMS if that's in the MTC. If it's general, like parties are ordered to arbitration per the agreement the defendant may be back in court getting this back on track as the Plaintiff did what the Judge ordered.

The main reason I'm going for the defendant laying everything in place is to avoid future court trips to unravel things the Plaintiff took advantage of. Those attorneys are in court on a regular basis. No big deal for them to keep coming back, they're stuck with a flat fee agreement to defend the Plaintiff's case, so it's not like the bill is going to run too high there. For the Pro Se though to keep going back to court is another matter usually.

Also, Plaintiff claims arbitration is costly, defendant is just stalling, judge asks defendant if they're sure they don't want to just handle this in court as the recent Michigan thread posted earlier detailed and the defendant waives their right to arbitration before they know what happened. If the defendant pulls out the paperwork showing JAMS has a case pending, they are waiting for Plaintiff, there just seems less wiggle room.

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56 minutes ago, CCRP626 said:

Just make sure to specify JAMS in your MTC or the Plaintiff may pick a different arbitrator.

@BrotherskeeperFor the earlier references to the Michigan arbitration act, that should be fine since it probably mirrors the FAA in most areas but if you find a difference, make sure you follow the FAA.

According to cc agreement's arb clause, other forum choice is AAA. Plaintiff is Midland. Rock, meet Hard Place. 

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Yeah, I guess JAMS got the coin flip. This case isn't proceeding in either one.

P.S. I think it was Citi who played the game where when a defendant got a MTC approved and picked JAMS, Citi would still do their own thing and proceed in AAA.

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45 minutes ago, CCRP626 said:

I forgot to mention, if the Judge is writing the order, make sure it specifies JAMS if that's in the MTC.

Wouldn't the OP include an order with his MTC?   If so, he could specify JAMS in that order.    But, would the judge have to sign it, or could he write his own?

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