FWM1A

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

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@BV80 that's where the Pro Se would want to see how it's run where they are. @Brotherskeeper would have a better idea than me. I don't see a problem including an order ready for the judge to sign. Around here (which is not Michigan) the task of orders is stated as to be completed by the attorney for the prevailing party unless the court directs otherwise. Anecdotal- Judge has always filled the court approved order form out for a Pro Se except one when the form was handed to the Pro Se to complete for review.

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@BV80  @CCRP626

Thanks for your input in this thread.  Yes, a proposed order is allowed--I included the court rule in a previous post. OP can draft a stipulation and proposed order to send to plaintiff prior to filing a MTC. If plaintiff agrees to stipulate dismissal and go into arb (ha!), the proposed order can go to the court for the judge to approve or not. 

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@Brotherskeeper - thank you for being active in my thread over the weekend. My beau had a (minor) surgery and I've been his aide...I had to mentally shut down from this case for a minute. I did receive the green card back on Saturday, by the way. I caught myself up on the many posts this thread has received since I have been away, and am just slightly confused, lol. I have received no word yet from the court OR the plaintiff's lawyers regarding my Answer. I suppose they quite recently received my notice to elect arbitration, but like you said, I certainly shouldn't count on them responding. What is my next step? Seems to be some conflicting opinions on whether to contact JAMS. Also, is a MTC Arb 100% necessary yet or should I wait to hear back from the court/plaintiff? Again, apologies for my absence, and thank you for the ongoing input.

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@FWM1A

I hope your friend is on the mend. Next steps are to reread your entire thread--including the links to other threads/sites--to  see what you missed the first time.  Carefully reread the arb clause in the cc agreement. Many of your current questions of next steps will likely be answered. Unfortunately, you will need to draft your own documents, based on your set of facts, using exemplars for guidance. If plaintiff's attorney contacts you about your arb election letter, you need to have thought out a response.  I believe fyresine's plaintiff's attorney is from the same firm as yours. If fyresine sent the virtually identical answer and election notice as yours, these attorneys are thinking through their strategy.  They may know about this forum and your postings. 

If your plaintiff will stipulate to a proposed order to arbitrate in JAMS, you will not need to file a MTC.  If they won't, you need to get your MTC together ASAP. You want to gain and retain leverage.  

Was the green card signed? 

Did you find out if your fee waiver has been granted from the judge?

 

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@Brotherskeeper - Update: just called the court...apparently the Judge did not sign the Fee Waiver. It was not denied, nor was it approved - I do not know for what reason, but I am assuming there is some confusion considering it is unheard of for a defendant to submit one. Also, the green card was signed, yes. I was told over the phone that I have a bench trial scheduled for mid June. Which I'll also have to read up on.

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2 hours ago, FWM1A said:

@Brotherskeeper - Update: just called the court...apparently the Judge did not sign the Fee Waiver. It was not denied, nor was it approved - I do not know for what reason, but I am assuming there is some confusion considering it is unheard of for a defendant to submit one. Also, the green card was signed, yes. I was told over the phone that I have a bench trial scheduled for mid June. Which I'll also have to read up on.

Perhaps the judge has not had the time. If you filled out the affidavit, showing the required proof, it's hard to imagine you would be denied. I don't know about the court or court clerks in your neck of the woods, but fee waivers are not unheard of. 

Did you use this online form? It might be a good idea to use this to see if you filled yours out correctly. 

http://michiganlegalhelp.org/self-help-tools/miscellaneous/automated-online-waiver-suspension-fees-costs-form

https://lawhelpinteractive.org/Interview/GenerateInterview/2621/engine

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FW,

Courts don't  always run as well-oiled machines.  Things happen. Or maybe you have a judge and clerks who are not used to someone using arbitration in a debt collection lawsuit.   You may want to go in person rather than telephoning. 

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@Brotherskeeper @debtzapper - yep! I did everything correctly. I've had the same individual helping me on the phone and in person (he was also the clerk who signed the affidavit for me while I was there, and answered any questions I had regarding the affidavit). Since I have a car payment/rent but no income currently, they asked me to describe on the affidavit how exactly I am paying for those (the generosity of my SO until I am back on my feet) so the Judge understands. Seemed like an invasion, but another clerk said it "wasn't going to fly" if I didn't offer some kind of explanation...definitely felt like I was being criticized for my situation. Very embarrassing. Anyway, sorry for such an unnecessarily long story, just thought it may be helpful for anyone who might come across this issue. Also, I did ask if it was possible for the Judge to have missed it, and I was told that he saw it because it was along with my Answer, just didn't sign it. Again, I haven't the slightest clue why. Sigh.

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@FWM1A

I have no idea what the judge will do; this is not as clear cut as receiving public assistance.  A fee waiver is not critical, but certainly would be of some benefit.  

Have you decided if you will contact plaintiff to find out if they will dismiss, or stipulate to a proposed order to compel arb and stay proceedings?  (IANAL) If they decline to do either, you will have to file a MTC. You do not want to have to deal with plaintiff filing a motion for summary disposition on top of everything else. 

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@Brotherskeeper - yup. I was waiting to see if they would respond, dismiss, or what. No dice. Guess who got a Motion for Summary Disposition in the mail today? And the court date is on my birthday of all days, how serendipitous. I've been ill again (such is life with an autoimmune disease), and somehow even poorer with the lovely new pile of med bills. So I'm really coming up blank here. I'm stressed, tired, and very sick of these guys hounding me. Any advice or am I screwed, here?

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@CCRP626 - this may sound stupid, but at this point since I already filed an answer and all that jazz, I was under the impression (again, probably incorrectly) that I would have to go through their lawyers with anything like this? No? I'm stupid? Yeah, I know. Lol. 

It certainly wouldn't hurt to give Midland a call but I won't get my hopes up...I'll contact them. Hopefully they are understanding and adhere to their pledge. It's seriously one crazy thing after another with my health. I'll let you guys know. 

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16 hours ago, FWM1A said:

@Brotherskeeper - yup. I was waiting to see if they would respond, dismiss, or what. No dice. Guess who got a Motion for Summary Disposition in the mail today? And the court date is on my birthday of all days, how serendipitous. I've been ill again (such is life with an autoimmune disease), and somehow even poorer with the lovely new pile of med bills. So I'm really coming up blank here. I'm stressed, tired, and very sick of these guys hounding me. Any advice or am I screwed, here?

@FWM1A

1.)  Was the date plaintiff filed the motion for summary disposition after plaintiff received your notice letter electing arbitration?  If so, (IANAL) that would indicate plaintiff's refusal to arbitrate.  

2.)  My advice, for what it's worth, depends on what you have the stamina for.  As outlined and advised in your thread, a motion to compel arbitration IMO was the way to go.  @fyresine was successful with her MTC.  In your case, the arbitration clause in the cc agreement states plaintiff must intiate arb if a MTC is granted.  

3.)  Are you up to contacting plaintiff's attorney to  declare your intent to move forward on arbitration?  If so, you would need to do this ASAP.  If they won't stipulate  to this, are you up to the task of scheduling a motion hearing, preparing the MTC and filing it?  Also, if they refuse, you will have to draft and file your opposition to the motion for summary disposition--by the deadline?

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@Brotherskeeper - yes, they filed the motion for summary disposition on 4/28, but they received my notice to elect arbitration on 4/11. It appears to me that they are completely ignoring the arbitration clause in the cc agreement, and instead have attacked my answer in their motion for summary disposition. 

Regarding whether I'm up for it...well, I have far more important things to deal with (my health, school, financial situation, etc) than this case, and I already have time conflicts with scheduled court dates and exams (not a huge deal, but another headache, yes). In addition, I have little faith in my ability to write a decent motion to compel arbitration considering MI laws, even after my research. This is why I didn't file the MTC when I (apparently) should have, but I wasn't aware that the window to do so was this small. Given all of this, I am calling midland to see if they will settle for a portion of the alleged debt. I'll report back. If they do not agree to settle, I will very seriously consider continuing with arbitration on principle alone.

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24 minutes ago, FWM1A said:

@Brotherskeeper - yes, they filed the motion for summary disposition on 4/28, but they received my notice to elect arbitration on 4/11. It appears to me that they are completely ignoring the arbitration clause in the cc agreement, and instead have attacked my answer in their motion for summary disposition. 

Regarding whether I'm up for it...well, I have far more important things to deal with (my health, school, financial situation, etc) than this case, and I already have time conflicts with scheduled court dates and exams (not a huge deal, but another headache, yes). In addition, I have little faith in my ability to write a decent motion to compel arbitration considering MI laws, even after my research. This is why I didn't file the MTC when I (apparently) should have, but I wasn't aware that the window to do so was this small. Given all of this, I am calling midland to see if they will settle for a portion of the alleged debt. I'll report back. If they do not agree to settle, I will very seriously consider continuing with arbitration on principle alone.

@FWM1A

It was always up to you to push them into arbitration because you elected it.  They have the right to sue you in court. You have the right--according to the governing cc agreement--to choose a private arbitration forum to settle any dispute. This was your leverage as it is not in plaintiff's best interest to leave court for arb , especially for such a low amount of money. According to the cc agreement arb clause, they would only be required to intiate arbitration after you filed a MTC and it was granted.  @fyresine had the template example of the MTC with my (Michigan) suggestions in her thread. She was granted her MTC .  

 

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@FWM1A

I am not a lawyer. This is an example of a proposed order that a  Michigan defendent might send to a plaintiff. I do not vouch for the correctness of this example. I believe the defendant in this case faxed over a copy of this as well as sent it by mail, then called the attorney to request the stipulation. If stipulation is denied, then a MTC is in order. The MTC would include language that prior stipulation was sought and denied. 

 

<<Court Caption Heading>>

 

[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION

 

WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, IT IS HEREBY ORDERED that Defendant’s Motion shall be:

____DENIED.

____GRANTED.

 

IT IS FURTHER ORDERED:

____That this matter is Dismissed [with/without] Prejudice.

____To Stay proceedings pending Private/Contractual Arbitration in JAMS.

 

____I stipulate to the entry of the above order.

____Notice and hearing on entry of the above order is waived.

 

Dated________________                               by______________________________________

                                                                        Attorney Name

                                                                        Attorney for Plaintiff

 

 

SO ORDERED, on this ______day of __________________, 2016.

 

                                                                        __________________________________________

Hon. <Judge’s name>

                                                                        District Court Judge

 

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@Brotherskeeper - I could certainly attempt the stipulation. However, I've called the lawyer twice already today with no answer. In any event, how do I oppose their motion for summary disposition? I feel like that's pretty important since it's coming up the quickest (June 13th, with bench trial on June 15th, just to recap). 

Are there any examples on the forum that you know of that would give me an idea of what it should look like? I've searched myself but have not been able to find one that fits my situation. I believe I have 13 days to oppose since I received their motion by mail (the deadline is Thursday of next week).

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31 minutes ago, FWM1A said:

@Brotherskeeper - I could certainly attempt the stipulation. However, I've called the lawyer twice already today with no answer. In any event, how do I oppose their motion for summary disposition? I feel like that's pretty important since it's coming up the quickest (June 13th, with bench trial on June 15th, just to recap). 

Are there any examples on the forum that you know of that would give me an idea of what it should look like? I've searched myself but have not been able to find one that fits my situation. I believe I have 13 days to oppose since I received their motion by mail (the deadline is Thursday of next week).

@FWM1A

I can only say what I would do in your situation. Today I would draft a fax cover letter to plaintiff's attorney stating:

1.) This is a follow up to the letter electing arb sent by CMRRR and received on XX date. (Enclose a copy of election letter in the fax.)

2.) I placed X phone calls to <<name>> attorney, which have not been returned. In the interest of judicial economy,  here is a proposed order to  stipulate to or waive notice and hearing of the motion to compel. (Slap the  court heading on the proposed order.)

3.) Fax this to the attention of the attorney and drop a copy of the entire packet by regular mail, or CMRRR if it isn't too expensive for you. 

 

If you wish to have help with their motion for summary disposition, we need to see what it is. 

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@FWM1A Your response in opposition to the MSD (disposition) must be served according to MCR 2.119.

Rule 2.119 Motion Practice

(2) Unless a different period is set by these rules or by the court for good cause, any response to a motion (including a brief or affidavits) required or permitted by these rules must be served as follows:

(a) at least 5 days before the hearing, if served by mail, or

(b) at least 3 days before the hearing, if served by delivery under MCR 2.107(C)(1) or (2).

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@FWM1A

Here is a typical Michigan opposition to summary disposition. Obviously the facts of this case are different than yours. Justiceforall3 prevailed as plaintiff's motion was denied. Soon thereafter, he received a stipulation to dismiss. He worked very hard and spent a lot of time, but he was fighting for 10 times the amount of debt you are. @bmc100 has posted many exemplars that he has worked on. 

This is not meant as a criticism, but you appear to work in bursts then disappear. I realize you have many challenges in your life. If you don't follow through, you will lose. With a concerted effort to get this done, you may have success. Getting a dismissal here and a walkaway with conditions favorable to you means that this will not follow you into your future. 

If plaintiff does not respond to your proposed order and/or refuses to dismiss or agree to arb, you need to schedule a hearing for the MTC arb. You may want to schedule it the same day as their MSD.  I gave you the link to the online form you would need to fill out after you talk to the court clerk to get on the court calendar. There is a motion fee of $20--if you haven't had the judge sign the fee waiver form. The actual MTC is really prewritten for you in fyresine's thread. All you would need to do is replace your information and facts.  You can post your draft here for comments.

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On 5/12/2016 at 2:04 PM, Brotherskeeper said:

@FWM1A

Here is a typical Michigan opposition to summary disposition. Obviously the facts of this case are different than yours. Justiceforall3 prevailed as plaintiff's motion was denied. Soon thereafter, he received a stipulation to dismiss. He worked very hard and spent a lot of time, but he was fighting for 10 times the amount of debt you are. @bmc100 has posted many exemplars that he has worked on. 

This is not meant as a criticism, but you appear to work in bursts then disappeaGetting a dismissal here and a walkaway with conditions favorable to you means that this will not follow you into your future. 

If plaintiff does not respond to your proposed order and/or refuses to dismiss or agree to arb, you need to schedule a hearing for the MTC arb. You may want to schedule it the same day as their MSD.  I gave you the link to the online form you would need to fill out after you talk to the court clerk to get on the court calendar. There is a motion fee of $20--if you haven't had the judge sign the fee waiver form. The actual MTC is really prewritten for you in fyresine's thread. All you would need to do is replace your information and facts.  You can post your draft here for comments.

I realize you have many challenges in your life. If you don't follow through, you will lose. With a concerted effort to get this done, you may have success."

@FWM1A  Please heed BK's advice.

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@FWM1A

Good news. I stumbled across this case cite in the Judge's Civil Proceedings Benchbook.  (IANAL) As long as a motion to compel arb contains proper citations, no brief is necessary.  

However, a trial court need not deny a motion if it is filed without a brief, if the motion itself contains citations to legal authority supporting its proposition. Woods v SLB Prop Mgmt, LLC, 277 Mich App 622, 625-626, 750 NW2d 228 (2008).

http://mjieducation.mi.gov/publications/benchbooks/civ-pro

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@FWM1A

http://mjieducation.mi.gov/training/CCBBcivilResponsiveHTML5/index.html#t=CCBBcivil%2FCh_3_Pretrial%2FSummary_Disposition-.htm

7.(C)(7): Claim Is Barred by One of Several Grounds Listed in the Subrule

A motion for summary disposition pursuant to MCR 2.116(C)(7) is based on the grounds that entry of judgment, dismissal of the action, or other relief is appropriate because of (1) release, (2) payment, (3) prior judgment, (4) immunity granted by law, (5) statute of limitations, (6) statute of frauds, (7) an agreement to arbitrate or to litigate in a different forum, (8) infancy or other disability of the moving party, or (9) assignment or other disposition of the claim before commencement of the action.

A party may show entitlement to summary disposition on the face of the pleadings alone, and “n reviewing a motion under MCR 2.116(C)(7) that challenges whether the movant is entitled to [summary disposition] on the face of the plaintiff’s pleadings, the trial court must accept all well-pleaded allegations as true. Yono v Dep’t of Transp (On Remand), 306 Mich App 671, 679 (2014). Further, the trial court must “construe the allegations in the light most favorable to the nonmoving party.” Id. However, “a party moving for summary disposition underMCR 2.116(C)(7) is not limited to challenging the facial validity of the pleadings.” Yono (On Remand), 306 Mich App at 679. A party may also use affidavits, depositions, admissions, or other documentary evidence to support the motion. Maiden v Rozwood, 461 Mich 109, 119 (1999). “In reviewing the motion, a court must review all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” Yono v Dep’t of Transp, 495 Mich 982, 982-83 (2014); see alsoMCR 2.116(G)(5). “If the movant properly supports his or her motion by presenting facts that, if left unrebutted, would show that there is no genuine issue of material fact that the movant [is entitled to summary disposition], the burden shifts to the nonmvoing party to present evidence that establishes a question of fact[.] Yono (On Remand), 306 Mich App at 679-680. “If the trial court determines that there is a question of fact as to whether the movant [is entitled to summary disposition], the court must deny the motion. Id. at 680.

Affidavits, depositions, admissions, and documentary evidence offered in support of or in opposition to a motion based on [MCR 2.116(C)(7)] shall only be considered to the extent that the content or substance would be admissible as evidence to establish or deny the grounds stated in the motion.” MCR 2.116(G)(6).

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