NH-Warrior

Rules of Evidence? Help Midland Suit in Small Claims in NH - Please

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NH Small Claims suit brought by Midland Funding LLC.  I can;t find a lot from NH for small claims :( This was a Synchrony/Amazon card and the amount being sued for is $2,995.08.  

There were absolutely zero documents attached to the complaint - how is that possible?  I was served by mail (that's how they do it for small claims).  I think I might be able to win this but the Rules of Evidence don't apply in small claims and and I am confused as exactly what this means.   How am I suppose to know what Midland has for proof of ownership of debt/standing to sue me?  Is this a normal thing for them to do?  I would think that when I show up that I would be allowed to review what they have?

I have to respond, and I will deny, but because I have no idea what they have, I am not sure if I should just file for arbitration or take the chance and ask for trial? I'm confused by the lack of any documents!  I want to wait to file until the day before it's due to give more time to prepare.

The complaint states: 
Plaintiff is the successor to the original creditor for the account described in the Statement of Consumer Debt.  After the defendant established and used the account, the creditor sent statements of activity and balance.  Defendant failed to pay the stated amount.  Plaintiff sues upon account stated to recover the outstanding balance.


The Statement of Debt reads:
Statement of Consumer Debt: Basis for this Statement: Information provided by my client
Basic information for cases arising from the extension of consumer credit:
Account number: last 4 

Date of last payment: July 2014 (within the NH SOL of 3 years)
Amount of last payment: $70.00

I did receive notice from law firm in November 2016, that they were hired to collect on behalf of Midland.  I sent a debt validation; no response other than to be served with Small Claims suit.  

Thank you, very much!

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Would someone please maybe let me know if the complaint being served without any documentation or proof of owning the debt, is normal? Is this a good or a bad thing? How can I defend if I don't know what they have/don't have?   It seems that proof doesn't have to be attached -http://www.courts.state.nh.us/rules/dmcr/dmcr-scefile-4_1-to-4_13.htm

(i)  If the plaintiff is a person or entity other than the original creditor, a statement that the plaintiff has a right to assert the claim and a listing of all prior owners of the claim commencing with the original creditor;

(ii) The account number/account identifier, if any, assigned to the obligation. The account number/account identifier shall be redacted to show only the last four digits;

I'm really nervous about the Rules of Evidence don't apply until I ask for a trial

Rule 4.5. Discovery and Rules of Evidence

Formal discovery, such as interrogatories, depositions, requests to produce documents, requests for admissions and other forms of discovery are not permitted in small claims cases unless ordered at the pre-trial hearing. The Rules of Evidence shall not apply in small claims cases.

I'm thinking that filing to arbitrate might be an option - I found the card agreement, thanks to this forum, and it is possible. Is this a good option?

Thank you very much!

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Arbitration is probably your only option. Unlike 10 years ago, Midland does not sue, these days, without everything they need to achieve Summary Judgement. Put another way - if this is your debt, the court will know it and you will lose.

 

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Not only is Goody correct, but NH is very much a pro-creditor state.  Arbitration is your only defense.   And the judge and clerks probably aren't used to seeing a defendant arbitrate a credit card lawsuit, so you will get pushback from them.  But if you are willing to learn and do the work, let the board know.

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Thank you!  Yes, I am more than willing! I have been reading and researching and I wrote up the MTC - I hope it is written up properly.  I found it on another NH thread; that thread never posted a final outcome however and I want to be able to use my case as a start-to-finish example.  This debt has gone through so many places that I am not even sure that Midland truly owns it. I don't want to find myself being sued for this one by someone else. 

My next steps should be to
File the Answer - deny and ask for trial
Get the Pre-Trial date
File the MTC - send to Plaintiff attorneys and to the court (certified signature required?). I think for the court, I attach it electornically but I will drop one off as well as send one
Wait for date or contact from Arbitrator?

Do I file a separate motion to dismiss and just break out the arbitration? That is confusing me.  And because it's Small Claims, does the Order need to read differently in terms of County? It's a district court in the county. 
Thank you :)

Here is the MTC Arbitration.  The language in the card agreements is the same language in the ones dated  09/14 and 03/16. Plaintiff has last date of pament as July 2014. 
I wrote the language in #3 but 3c is an issue; I  also added the NH statute regarding arbitration.

IN THE COURT OF XXXXXX COUNTY

STATE OF NEW HAMPSHIRE

Midland Funding LLC(“Plaintiff”) vs.

XXX XXX (“Defendant”) CASE NO. xxxxxxxx

MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION, and PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about XXX, 2017, Plaintiff filed its Complaint against Defendant. Defendant denied Complaint.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached). 

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) 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.

(b) 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.  

(c) THE ARBITRATOR SHALL RESOLVE ANY CLAIMS, INCLUDING THE APPLICABILITY OF THIS ARBITRATION AND LITIGATION SECTION OF THE VALIDITY OF THE AGREEMENT OR ANY PRIOR AGREEMENT.   ***There is no section in the agreement that reads like this****

5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: 

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. NH Rev Stat § 542:1 (2014)

    542:1 Validity of Arbitration Agreements. – A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or an agreement in writing to submit to arbitration any controversy existing at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The provisions of this chapter shall not apply to any arbitration agreement between employers and employees, or between employers and associations of employees unless such agreement specifically provides that it shall be subject to the provisions of this chapter.

8. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day xxxxxxx xx, 2017

_______________________________

xxxxxxxxxxxx

ORDER TO DISMISS OR STAY CASE AND COMPEL PRIVATE/CONTRACTUAL ARBITRATION

Case No. xxxxxxx : COURT OF XXX COUNTY

PLAINTIFF

VS.

xxxxxxxxxx

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:

GRANTED / DENIED

This _____ day of _________________, 2016

By: ________________________

Judge of the xxxxxxx County Court

 

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Question....

 

I'm only asking for purposes of provoking thought, because I don't know the answer myself.  I know that a lot of arbitration clauses in credit agreements state that arbitration is not an option if the suit is in small claims court, like this one is.  Is this the case for Synchrony/Amazon?  I'd hate the OP to put his eggs in the arb basket only to have them get that plan tossed because of the contract wording. 

Also, isn't Midland subject to a consent order that covers debt collection lawsuits from CFPB?  If they do not meet the conditions in that consent order, I'd definitely bring that to the court's attention, that they have been caught breaking laws and the consent order must be followed.

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9 minutes ago, kraftykrab said:

I'm only asking for purposes of provoking thought, because I don't know the answer myself.  I know that a lot of arbitration clauses in credit agreements state that arbitration is not an option if the suit is in small claims court, like this one is.  Is this the case for Synchrony/Amazon?  I'd hate the OP to put his eggs in the arb basket only to have them get that plan tossed because of the contract wording. 

The OP needs to check the agreement.

9 minutes ago, kraftykrab said:

Also, isn't Midland subject to a consent order that covers debt collection lawsuits from CFPB?  If they do not meet the conditions in that consent order, I'd definitely bring that to the court's attention, that they have been caught breaking laws and the consent order must be followed.

If you're referring to documentation needed to prove its claim, the Order says that Midland must be in possession of certain documentation at the time of filing.   However, it doesn't state that the documentation must be attached to the complaint.  

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1 hour ago, kraftykrab said:

Question....

I'm only asking for purposes of provoking thought, because I don't know the answer myself.  I know that a lot of arbitration clauses in credit agreements state that arbitration is not an option if the suit is in small claims court, like this one is.  Is this the case for Synchrony/Amazon?  I'd hate the OP to put his eggs in the arb basket only to have them get that plan tossed because of the contract wording.

I believe that arbitration is an option and I have read that, even if I participate in discovery that may be ordered at pre-trial or trial, that does not necessarily constitute a waiver of my right to arbitration.  I have the 2 NH cases that established this but, they are old - I found them in another thread.

Here is the wording of the Agreement.  It does not appear to say that I cannot ask for arbitration but that they will not require arbitration.....

 

“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 Amazon.com 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.”

Here is the rest of it:

How to start an arbitration, and the arbitration process

 

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit.

Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.

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.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

Governing Law for Arbitration: This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

How to reject this section

You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this section

 

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1 hour ago, kraftykrab said:

Question....

Also, isn't Midland subject to a consent order that covers debt collection lawsuits from CFPB?  If they do not meet the conditions in that consent order, I'd definitely bring that to the court's attention, that they have been caught breaking laws and the consent order must be followed.

I think it's crazy that they can submit a complaint and not even attach anything to it.  They just write "Based on information from my client".  Like I said, I have no idea if this is a debt that Midland really owns or can collect on.  It's been bounced everywhere and I don't want to get bitten by another debt company claiming that THEY have ownership and right.  ugh!

 

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1 hour ago, BV80 said:

The OP needs to check the agreement.

If you're referring to documentation needed to prove its claim, the Order says that Midland must be in possession of certain documentation at the time of filing.   However, it doesn't state that the documentation must be attached to the complaint.  

So @BV80, when would I have the chance to see their evidence? At the pre-trial or trial?  I will respond with a deny and then then ask for pre-trial when I do the arbitration but, it just seems so wrong that they can file this claim without presenting any supporting documents.  Do they do this as a scare tactic? Do people just say "OK" and then pay up? Thanks

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6 minutes ago, NH-Warrior said:

So @BV80, when would I have the chance to see their evidence? At the pre-trial or trial?  I will respond with a deny and then then ask for pre-trial when I do the arbitration but, it just seems so wrong that they can file this claim without presenting any supporting documents.  Do they do this as a scare tactic? Do people just say "OK" and then pay up? Thanks

Your rules of civil procedure should tell you what's required to be attached to the complaint.   Many courts don't require documentation to be attached.

You need to get a copy of an agreement that was in effect when the account was in good standing.  The Consumer Financial Protection Bureau has copies of agreements.   It might be in their archives.

https://www.consumerfinance.gov/credit-cards/agreements/

If the agreement doesn't have a small claims exception (meaning that small claims cases cannot be arbitrated), then you can MTC arbitration, and schedule a hearing for that motion.   If the motion is granted, there will be no pre-trial because the court no longer has jurisdiction to hear the case. 

 

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The Rules are loose for small claims

503:3 Process. – An action on a small claim may be commenced by filing an application in the district or municipal court having jurisdiction. The application may be filed by a person or his authorized attorney and shall set forth a statement of the claim, including the names of the parties involved, the residence of each party, the basis of the claim, and the amount alleged to be due. Upon the filing of such an application and the payment of the required fee, the clerk shall set a time and place for hearing.
503:3-a Entry of Claims; Generally. – The statement of the claim shall be filed with the clerk of a municipal court in the town in which the defendant or the plaintiff resides. If there is no municipal court in the town in which the defendant or the plaintiff resides, the statement of the claim shall be filed with the clerk of the district court in which district the defendant or the plaintiff resides.
 503:7 Judgment. – At the hearing, the technical rules of evidence shall not apply but the justice may admit any evidence he deems material and proper. Judgment shall be entered for the prevailing party and, if the plaintiff recovers, his costs and interest shall be awarded to him in addition to the judgment in his behalf. In awarding judgment, the justice may provide for payment thereof in installments. The court shall render judgment for the plaintiff when the defendant fails to appear pursuant to said notice.


I guess "Information provided by my client" statement is enough? Rhetorical question but really.... I'm amazed!

I have the agreement from 9/14 The complaint states the last payment date was july 2014. I believe that that agreement is good then.  This is the only mention of small claims court

“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 Amazon.com 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.

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8 minutes ago, NH-Warrior said:

I guess "Information provided by my client" statement is enough? Rhetorical question but really.... I'm amazed!

It has to do with stating a claim for which relief can be granted.  In other words, the complaint must state enough that the court make a decision one way or the other.  

A complaint couldn't consist of "the defendant owes me money" and nothing else because that doesn't give the court enough information to render a decision.

 

10 minutes ago, NH-Warrior said:

“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 Amazon.com 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.

Good.  There is no small claims exception.  It says that they won't require you to arbitrate a small claims complaint.   It does not say that you can't arbitrate it.  :)

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Ok that makes sense - I guess LOL  It has to be enough for the court but not for the defendant.  So in the complaint, the statement where it says:

"Plaintiff is the successor to the original creditor for the account described in the Statement of Consumer Debt.  After the defendant established and used the account, the creditor sent statements of activity and balance.  Defendant failed to pay the stated amount.  Plaintiff sues upon account stated to recover the outstanding balance."

This is sufficient for the court to determine that the plaintiff can bring the suit.  But surely (don't call me Shirley) this is not enough to prove that they are owed the debt and that I must pay them - right?  I mean, anyone could assert this!  This is where I will deny all - I truly have no clue if they really even do own this damn debt, it has been bounced around so much! 

I am soooo glad the arbitration is ok :) thanks! Now it's just a matter of responding and then filing; a part of me wants to go through discovery just to see if they have anyting that proves that they own this debt and that it is indeed my debt and that they have the right to collect it.  I don't think I should chance this though - right?

Thanks!!!!!!!!!

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1 minute ago, NH-Warrior said:

"Plaintiff is the successor to the original creditor for the account described in the Statement of Consumer Debt.  After the defendant established and used the account, the creditor sent statements of activity and balance.  Defendant failed to pay the stated amount.  Plaintiff sues upon account stated to recover the outstanding balance."

This is sufficient for the court to determine that the plaintiff can bring the suit.  But surely (don't call me Shirley) this is not enough to prove that they are owed the debt and that I must pay them - right?  I mean, anyone could assert this!  This is where I will deny all - I truly have no clue if they really even do own this damn debt, it has been bounced around so much! 

If a defendant did not respond to the complaint, it would be enough for the court to grant a default judgment in favor of the plaintiff.

You're correct that it's not enough to prove ownership and right to receive payment.

Note that if you answer the complaint, one of your defenses must be that that the court lacks jurisdiction due to an arbitration provision in the cardmember agreement and that you are filing a MTC arbitration.

Calling @fisthardcheese

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6 hours ago, NH-Warrior said:

Ok that makes sense - I guess LOL  It has to be enough for the court but not for the defendant.  So in the complaint, the statement where it says:

"Plaintiff is the successor to the original creditor for the account described in the Statement of Consumer Debt.  After the defendant established and used the account, the creditor sent statements of activity and balance.  Defendant failed to pay the stated amount.  Plaintiff sues upon account stated to recover the outstanding balance."

This is sufficient for the court to determine that the plaintiff can bring the suit.  But surely (don't call me Shirley) this is not enough to prove that they are owed the debt and that I must pay them - right?  I mean, anyone could assert this!  This is where I will deny all - I truly have no clue if they really even do own this damn debt, it has been bounced around so much! 

I am soooo glad the arbitration is ok :) thanks! Now it's just a matter of responding and then filing; a part of me wants to go through discovery just to see if they have anyting that proves that they own this debt and that it is indeed my debt and that they have the right to collect it.  I don't think I should chance this though - right?

Thanks!!!!!!!!!

No, you don't want to go through discovery.  NH, as I said, is very creditor friendly. You will lose in court.  A NH small claims judge will not need much in the way of documentation to find you liable for the debt.   Arbitration is your only option, and even that will take some doing.

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Although this is not from a credit card lawsuit, this is a 2016  NH defendant's Motion to Dismiss Plaintiff's Complaint and Compel Arbitration.  Attached also is a Memorandum of Law that cites a number of NH court rulings as well as NH's arbitration statutes.  It can serve as a guide for your MTC

PDF]In a motion filed on Friday

www.vnews.com/getattachment/Articles/2016/11/07/Dartmouth.../DHMCIsrael.pdf
  1.  
Nov 4, 2016 - DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT. AND COMPEL ARBITRATION. Pursuant to New Hampshire Superior Court .

 

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Especially in a small claims court, where no discovery really applies, this is how it usually goes:

Judge: Did you have an amazon account?
Consumer:  Yes, but...
Judge: Judgement for the Plaintiff.  Next!

These JDBs like midland get judgements this way all the time.  That is why I say arbitration is important in cases like this.  If this were me, I would stop even thinking about the fact they have not given you any documentation or discovery or any other part of the court process.  In this case, my only way of thinking would be that this court has no jurisdiction because arbitration is the only proper forum.  I don't want this court thinking about anything other than my MTC in this case.  I shift my thinking from defending myself in court to getting the court to grant my MTC.  That is the only thing I want to deal with as far as this court goes.  Anything else is just a distraction from my MTC.

Your copy of MTC that you posted was good, except that you left the copy/paste language from another card agreement that doesn't apply to yours.  Don't do this!!!!  If this were me, I would eliminate the entire a, b and c paragraphs from section 3.  I would reword section 3 to include only one line from the synchrony agreement:

3.  The parties are bound by the Credit Card Agreement, which states in part, "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 Amazon.com if it relates to your account". (emphasis added)

 

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1 hour ago, fisthardcheese said:

Your copy of MTC that you posted was good, except that you left the copy/paste language from another card agreement that doesn't apply to yours.  Don't do this!!!!  If this were me, I would eliminate the entire a, b and c paragraphs from section 3.  I would reword section 3 to include only one line from the synchrony agreement:

3.  The parties are bound by the Credit Card Agreement, which states in part, "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 Amazon.com if it relates to your account". (emphasis added)

 

You are right - I will ignore everything else now and focus on the MTC.  Thank you.  Sometimes I get lost in the weeds of an issue when I just can't wrap my head around it.  But now, it's MTC 24/7!  I have begun to work on my "speech" this morning.  I also plan to drop in on a few cases this week.  The deadline for response is fast approaching! 

Thank you so so so much.  I want to prevail and let this case, through its completion, stand for others that find this amazing forum. 


Here is the revised.  I was wondering about the other 3 c when I could not find it in the agreement that I have.  I also have read that it's important to have the NH revised arbitration statute in the MTC - it is from 2014.  I also beefed up 6.

IN THE COURT OF XXXXXX COUNTY

STATE OF NEW HAMPSHIRE

Midland Funding LLC(“Plaintiff”) vs.

XXX XXX (“Defendant”) CASE NO. xxxxxxxx

MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION, and PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about XXX, 2017, Plaintiff filed its Complaint against Defendant. Defendant denied Complaint.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached). 

3. The parties are bound by the Credit Card Agreement which states in part "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 Amazon.com if it relates to your account"

4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: 

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

6. While the FAA governs the arbitrability of this dispute for several reasons, including Plaintiffs interstate operability throughout New Hampshire and several other states, the analysis would be the same under the New Hampshire arbitration statute, see NH Rev Stat § 542:1 (2014)

    542:1 Validity of Arbitration Agreements. – A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or an agreement in writing to submit to arbitration any controversy existing at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The provisions of this chapter shall not apply to any arbitration agreement between employers and employees, or between employers and associations of employees unless such agreement specifically provides that it shall be subject to the provisions of this chapter.

7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day xxxxxxx xx, 2017

_______________________________

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7 hours ago, debtzapper said:

Although this is not from a credit card lawsuit, this is a 2016  NH defendant's Motion to Dismiss Plaintiff's Complaint and Compel Arbitration.  Attached also is a Memorandum of Law that cites a number of NH court rulings as well as NH's arbitration statutes.  It can serve as a guide for your MTC

PDF]In a motion filed on Friday

www.vnews.com/getattachment/Articles/2016/11/07/Dartmouth.../DHMCIsrael.pdf
  1.  
Nov 4, 2016 - DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT. AND COMPEL ARBITRATION. Pursuant to New Hampshire Superior Court .

 

This is GREAT! Thank you.  I used some language in 6) on my MTC

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The revised MTC is good.  In my suggestion for #3, I bolded the word "must" because I feel it is key to the entire arbitration clause, stating that arbitraiton is a MUST rather than an option.  IF you keep it bolded for your copy filed with the court, you should add the "(emphasis added)" at the end of the quote so the court knows you are the one who added the bolded word and that it does not appear in the contract this way.

Other than that detail, it looks ready to file to me.

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fishardcheese gave you his usual excellent advice.  But you are going up before a NH small claims judge who is not used to  seeing pro se defendants cite US Supreme Court cases in a motion.  From that Memorandum of Law I  that I linked yesterday, go to p. 8, and starting where it says "As with the FAA, New Hampshire public policy strongly encourages arbitration" quote all that down to where the paragraph  ends.    While the judge may not at home with  US Supreme Court cases,  he is familiar with NH court decisions, so I would work that paragraph into your motion.

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@fisthardcheese Thank you again!  I would have not added the "emphasis added" and that could be grounds to deny I would think (?)  

@debtzapper  Thank you again.  I had actually looked at that portion of the Memorandum you had linked and wondered if I should include it somewhere.  I don't think I should remove any of the Supreme Court citations though (?) because the agreement and arbitration is covered under both? Or am I wrong? 

Should I include the p. 8 language within my 6) where I quote NH statute or break it out into a 7) and move the numbering?

One more question please: I believe I need to attach an affidavit stating that "the card agreement is the one that goes with the card to the best of my knowledge".  Is that correct?

I have been doing a lot of reading to find out what types of roadblocks that they may put up.  Here are two that I may encounter:

Card Agreement Not Acceptable - No proof it is/was the agreement that attaches to the alleged debt

Card Agreement Not Authentic - Due to being "downloaded from the internet"

I am still preparing my argument sheet. Fear of public speaking could be the main thing that will sink me :(

 

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I believe you submit your own affidavit attesting to the accuracy of the cc agreement. That raises the bar for them to prove their objections. I recently saw a case where the plaintiff got the judge to agree that the defendant needed to find an agreement from when the account was opened (due to some language in the agreement that the judge misunderstood.) The defendant found an agreement that pleased the judge, arb was granted and plaintiff dismissed.

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Keep the Supreme Court citations.  Where you have number 7, insert the part I asked you to quote, then re-number.

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