Joker

NEED HELP IN MICHIGAN! Cavalry SPV I

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I always say file the MTC and ask for arbitration.  I never assume arb is off the table until and unless a judge tells me so.  I think a good argument is to be made that OP learned of the arbitration clause once they submitted the card agreement during discovery and now wishes to assert their right to arbitration.

Since MSJ has been filed, I would file 2 things:  1. the MTC and 2. Opposition to MSJ.  In my opposition to MSJ I would state that there is an arbitration agreement and pending MTC which speaks to jurisdiction and that the court should not rule on the MSJ, as that is a matter for arbitration.

I would file both of those ASAP.

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POST YOUR ANSWER, POST ALL THE EVIDENCE THEY SUPPLIED WITH THEIR COMPLAINT, DISCOVERY AND THEIR MSJ.

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@Joker

IANAL If you didn't list the existence of an agreement to arbitrate as an affirmative defense, you have to get plaintiff's or the court's permission to file an amended answer to include  it.**  You may submit the motion to amend (if plaintiff denies consent) and the motion to compel at the same time. Since you only recently received  via plaintiff a copy of the contract that plaintiff alleges is the one governing the parties, you just discovered that the arb clause allows you to assert the defense right up until trial. If you file soon, you haven't delayed, prejudiced plaintiff or waived your right to arb.  

Examples of the things you need to file are all available here at CIC, and we can help you tweak your drafts, but you have to do the work and quickly. Careful reading is an important skill set to develop. You've been asked specific questions that you have not answered. We also need to see the documents. 

 

**MCR 2.116(C)(7), (D)(2) Summary Disposition

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party’s responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party’s first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

MCR 2.118  Amended and Supplemental Pleadings

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party’s reimbursing the adverse party for the additional expense, including reasonable attorney fees.

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7 hours ago, Brotherskeeper said:

@Joker

IANAL If you didn't list the existence of an agreement to arbitrate as an affirmative defense, you have to get plaintiff's or the court's permission to file an amended answer to include  it.**  You may submit the motion to amend (if plaintiff denies consent) and the motion to compel at the same time. Since you only recently received  via plaintiff a copy of the contract that plaintiff alleges is the one governing the parties, you just discovered that the arb clause allows you to assert the defense right up until trial. If you file soon, you haven't delayed, prejudiced plaintiff or waived your right to arb.  

Examples of the things you need to file are all available here at CIC, and we can help you tweak your drafts, but you have to do the work and quickly. Careful reading is an important skill set to develop. You've been asked specific questions that you have not answered. We also need to see the documents. 

 

**MCR 2.116(C)(7), (D)(2) Summary Disposition

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party’s responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party’s first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

MCR 2.118  Amended and Supplemental Pleadings

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party’s reimbursing the adverse party for the additional expense, including reasonable attorney fees.

@Brotherskeeper  Excellent advice, as always.

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On 9/17/2017 at 0:16 AM, BV80 said:

We need the context.  What is stated in the entire paragraph?

I posted the paragraph a few posts up. 

 

"At any time you or we may and ask an appropriate Court to compel arbitration of claims, or to stay the litigation of claims pending arbitration , even if such claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time or in connection with any particular claims, that party can still require arbitration at a later time or in connection with any other claims" 

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@Brotherskeeper @bmc100  I'm at work right now. Will get the requested information from the discovery and msd when I get out.  

 

23 hours ago, Brotherskeeper said:

@Joker

IANAL If you didn't list the existence of an agreement to arbitrate as an affirmative defense, you have to get plaintiff's or the court's permission to file an amended answer to include  it.**  You may submit the motion to amend (if plaintiff denies consent) and the motion to compel at the same time. Since you only recently received  via plaintiff a copy of the contract that plaintiff alleges is the one governing the parties, you just discovered that the arb clause allows you to assert the defense right up until trial. If you file soon, you haven't delayed, prejudiced plaintiff or waived your right to arb.  

Examples of the things you need to file are all available here at CIC, and we can help you tweak your drafts, but you have to do the work and quickly. Careful reading is an important skill set to develop. You've been asked specific questions that you have not answered. We also need to see the documents. 

 

**MCR 2.116(C)(7), (D)(2) Summary Disposition

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(2) The grounds listed in subrule (C)(5), (6), and (7) must be raised in a party’s responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party’s first responsive pleading. Amendment of a responsive pleading is governed by MCR 2.118.

MCR 2.118  Amended and Supplemental Pleadings

(2) Except as provided in subrule (A)(1), a party may amend a pleading only by leave of the court or by written consent of the adverse party. Leave shall be freely given when justice so requires.

(3) On a finding that inexcusable delay in requesting an amendment has caused or will cause the adverse party additional expense that would have been unnecessary had the request for amendment been filed earlier, the court may condition the order allowing amendment on the offending party’s reimbursing the adverse party for the additional expense, including reasonable attorney fees.

Ok so what you are saying is I need to request permission from plaintiff to amend my original answer? How would I do that?  I'm guessing it is unlikely they will allow me to do so . 

 

Then if they deny I would file a motion asking for court permission  to amend answer,  along with the MTC. 

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@Joker Did you list arbitration as an affirmative defense in your first answer? If yes, you don't need to amend to include it--unless you made another error we don't know about. We can't really help you if you don't answer the questions we ask. We have requested for you to post documents. 

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1 hour ago, Joker said:

I'm at work right now. Will get the requested information from the discovery and msd when I get out.  

Sorry didn't see this. We need to see your answer with affirmative defenses, too. 

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I'm trying currently to do a lot of this through my phone.  My answer actually was pretty limited. I used the basic court form and just hand wrote my answers. I was going to amend within the 14 days and submit my typed one I had started. Right after that I had a flood that  destroyed practically everything in my basement.   Took out my laptop, and printer... In the process of all that I missed the deadline to amend.  Since then its just been one thing after another.(when it rains it pours)   I did not list arbitration in my original answer.

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@Joker Here is an example of a motion for leave to file amended answer. If you use this, you must change the wording to include your specifics--such as when/how you received the alleged cc agreement from plaintiff. 

<<Court Caption Heading Here>>

DEFENDANT’S MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES

 

NOW COMES, Defendant in pro per XXXX, and pursuant to MCL 600.2301 and MCR 2.118(A)(2) as grounds, respectfully requests that this Honorable Court grant Defendant leave to file his First Amended Answer and Affirmative Defenses in the above captioned matter. In support of his motion, Defendant states the following:

1.  The Complaint in this case was served upon the Defendant on XXXX XX, 2017.

2.  In this contract action, Plaintiff and Plaintiff’s affiant failed to attach to its Complaint or Affidavit the referenced Credit Card Account Agreement of its alleged predecessor in interest.

3.  Defendant in pro per filed an Answer on XXXX XX, 2017.

4.  At a pre-trial conference on XXXX XX, 2017, Plaintiff requested 60 to 90 days to obtain evidence. This Court granted the parties 60 days to conduct discovery. Defendant did not send any discovery requests to the Plaintiff.

5.  Defendant as a pro per litigant has required research time to locate the applicable Credit Card Account Agreement that governs the alleged account at issue and review its terms. Thereafter, Defendant became aware of his defenses only upon new legal research of the Agreement’s terms, specifically its Arbitration Clause.

6.  MCR 2.118(A)(2) provides that a party may amend a pleading by leave of the Court, and that leave “shall be freely given when justice so requires.” “’A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, and (5) futility.”’  Amerisure Insurance Co. v Graff Chevrolet, Inc., 257 Mich App 585, 598, 669 NW2d 304, 311 (2003) (quoting Weymers v Khera, 454 Mich 639, 563 NW2d 647 (1997)). None of these particularized reasons exist and this Court should grant Defendant’s motion.

7.  An amendment is generally a matter of right rather than of grace. In re Kostin Estate, 278 Mich App 47; 748 NW2d 583 (2008) (citing Ben P. Fyke & Sons v. Gunter Co., 390 Mich 649, 659; 213 NW2d 134 (1973)).

8.  Here, the Defendant respectfully submits he has not abused this privilege, becoming aware of his defenses only upon new legal research, the plaintiff would not be unduly prejudiced by the amendment, and the amendment would provide defendant a substantive defense, and therefore not be futile.

9.  The attorney for the Plaintiff has been contacted for concurrence with this motion and: ___does agree to the filing; ___does not agree with the filing; or ___did not respond. (include only the one that applies; if agrees, must include written agreement from plaintiff marked as Exhibit B attached to defendant’s affidavit stating it’s a true and correct copy.)

            10.  A true and correct copy of the First Amended Answer and Affirmative Defenses is attached to this motion as Exhibit A.

WHEREFORE, Defendant in pro per respectfully requests that this Honorable Court grant leave to allow Defendant to file his First Amended Answer and Affirmative Defenses.

 

Dated: XXXX,XX, 2017                                                                                                                               Respectfully submitted,

                                                                                                                                                                                          XXXXXX

                                                                                                                                                                                         Defendant in Pro Per

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3 minutes ago, Joker said:

I'm trying currently to do a lot of this through my phone.  My answer actually was pretty limited. I used the basic court form and just hand wrote my answers. I was going to amend within the 14 days and submit my typed one I had started. Right after that I had a flood that  destroyed practically everything in my basement.   Took out my laptop, and printer... In the process of all that I missed the deadline to amend.  Since then its just been one thing after another.(when it rains it pours)   I did not list arbitration in my original answer.

Oh, how awful. Do you have use of a computer now? 

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8 minutes ago, Brotherskeeper said:

Oh, how awful. Do you have use of a computer now? 

Yes, I was able to fix my old laptops charging port this weekend.

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Yeah , it was awful. I was stressing about my damaged furnace.  I just made progress in that though. Since my county was declared a natural disaster area. I qualify for a grant for my damages, FEMA comes tmro to inspect damages.  Hmm , I wonder if  helps me at all in this situation... I tried to research but couldn't find much on it. 

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T

26 minutes ago, Brotherskeeper said:

@Joker Here is an example of a motion for leave to file amended answer. If you use this, you must change the wording to include your specifics--such as when/how you received the alleged cc agreement from plaintiff. 

<<Court Caption Heading Here>>

DEFENDANT’S MOTION FOR LEAVE TO FILE FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES

 

NOW COMES, Defendant in pro per XXXX, and pursuant to MCL 600.2301 and MCR 2.118(A)(2) as grounds, respectfully requests that this Honorable Court grant Defendant leave to file his First Amended Answer and Affirmative Defenses in the above captioned matter. In support of his motion, Defendant states the following:

1.  The Complaint in this case was served upon the Defendant on XXXX XX, 2017.

2.  In this contract action, Plaintiff and Plaintiff’s affiant failed to attach to its Complaint or Affidavit the referenced Credit Card Account Agreement of its alleged predecessor in interest.

3.  Defendant in pro per filed an Answer on XXXX XX, 2017.

4.  At a pre-trial conference on XXXX XX, 2017, Plaintiff requested 60 to 90 days to obtain evidence. This Court granted the parties 60 days to conduct discovery. Defendant did not send any discovery requests to the Plaintiff.

5.  Defendant as a pro per litigant has required research time to locate the applicable Credit Card Account Agreement that governs the alleged account at issue and review its terms. Thereafter, Defendant became aware of his defenses only upon new legal research of the Agreement’s terms, specifically its Arbitration Clause.

6.  MCR 2.118(A)(2) provides that a party may amend a pleading by leave of the Court, and that leave “shall be freely given when justice so requires.” “’A motion to amend ordinarily should be granted, and should be denied only for the following particularized reasons: (1) undue delay, (2) bad faith or dilatory motive on the part of the movant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, and (5) futility.”’  Amerisure Insurance Co. v Graff Chevrolet, Inc., 257 Mich App 585, 598, 669 NW2d 304, 311 (2003) (quoting Weymers v Khera, 454 Mich 639, 563 NW2d 647 (1997)). None of these particularized reasons exist and this Court should grant Defendant’s motion.

7.  An amendment is generally a matter of right rather than of grace. In re Kostin Estate, 278 Mich App 47; 748 NW2d 583 (2008) (citing Ben P. Fyke & Sons v. Gunter Co., 390 Mich 649, 659; 213 NW2d 134 (1973)).

8.  Here, the Defendant respectfully submits he has not abused this privilege, becoming aware of his defenses only upon new legal research, the plaintiff would not be unduly prejudiced by the amendment, and the amendment would provide defendant a substantive defense, and therefore not be futile.

9.  The attorney for the Plaintiff has been contacted for concurrence with this motion and: ___does agree to the filing; ___does not agree with the filing; or ___did not respond. (include only the one that applies; if agrees, must include written agreement from plaintiff marked as Exhibit B attached to defendant’s affidavit stating it’s a true and correct copy.)

            10.  A true and correct copy of the First Amended Answer and Affirmative Defenses is attached to this motion as Exhibit A.

WHEREFORE, Defendant in pro per respectfully requests that this Honorable Court grant leave to allow Defendant to file his First Amended Answer and Affirmative Defenses.

 

Dated: XXXX,XX, 2017                                                                                                                               Respectfully submitted,

                                                                                                                                                                                          XXXXXX

                                                                                                                                                                                         Defendant in Pro Per

Thank you, that helps a lot. So with that do I just refile answers to complaint, or a MTC arbitration in lieu of answer ?  

Also what do I have to do to request plaintiff permission to amend? 

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Just now, Joker said:

T

Thank you, that helps a lot. So with that do I just refile answers to complaint, or a MTC arbitration in lieu of answer ? 

IANAL. Because you filed an answer (aka first responsive pleading), I don't think you can now file a MTC in lieu of. I believe (again IANAL) you have to redo your answer. (If your MTC arb is somehow denied, you need to fight on in court, having answered correctly.) It has to be titled DEFENDANT'S FIRST AMENDED ANSWER AND AFFIRMATIVE DEFENSES. This amended answer takes the place of the original. It is critical that you answer each allegation carefully and include the affirmative defenses, because this takes the place of the original answer. You can also include the affidavit denying the account stated claim you should've submitted the first time. 

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@Joker

In the amended answer, you need to have a separate section titled AFFIRMATVE DEFENSES with each defense listed below. (MCR 2.111(F)(1)(3).

 

Rule 2.111 General Rules of Pleading

(F) Defenses; Requirement That Defense Be Pleaded.

(1) Pleading Multiple Defenses. A pleader may assert as many defenses, legal or equitable or both, as the pleader has against an opposing party. A defense is not waived by being joined with other defenses.

(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting

(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;

(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;

(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.

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32 minutes ago, Joker said:

Also what do I have to do to request plaintiff permission to amend? 

In my brother's case, he called the attorney. She declined concurrence. He filed the motion including statement that plaintiff declined concurrence in phone call on such and such date. Motion to amend was granted. In justiceforall3's case, he called the attorney. The attorney said okay. They exchanged email addresses. The attorney emailed her written consent. Amended Answer was filed with the court, including copy of plaintiff's written concurrence. Amended Answer was accepted by judge. 

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Re: amendment of pleadings. Just putting this here for anyone coming along behind. From the Michigan Civil Proceedings Benchbook (excellent resource):

“Although affirmative defenses are not ‘pleadings,’ the Court Rules unambiguously permit them to be amended in the same manner as pleadings.” Tyra v Organ Procurement Agency of Mich, 302 Mich App 208, 213 (2013), overruled in part on other grounds 498 Mich 68, 74 (2015). (internal citation omitted). “[A] defendant may move to amend their affirmative defenses to add any that become apparent at any time, and any such motion should be granted as a matter of course so long as doing so would not prejudice the plaintiff.” Id.

https://mjieducation.mi.gov/training/CCBBcivilResponsiveHTML5/index.html#t=CCBBcivil%2FCh_2_Jurisdiction_and_Pleadings%2FAmendment_of_Pleadings-.htm%23IX_by_consent

Inexcusable (or undue) delay, by itself, is not sufficient to deny a motion to amend. Stanke v State Farm Mut Auto Ins Co, 200 Mich App 307, 321 (1993). In Stanke, the Court stated that “there must always be some delay associated with an amendment of a pleading.” Stanke, supra at 321. Leave to amend should be granted unless the delay occurred as a result of bad faith or created actual prejudice. Id. The proper remedy for inexcusable delay is to impose sanctions under MCR 2.118(A)(3). Stanke, supra at 321.“‘Prejudice’ refers to matter which would prevent a party from having a fair trial, or matter which he [or she] could not properly contest, e.g. when surprised. It does not refer to the effect on the result of the trial otherwise.” Fyke, 390 Mich at 657. See also Franchino, 263 Mich App at 191-192 (where the plaintiff was denied his third application to amend when its contents would have unjustifiably surprised the defendant so close to trial), and Weymers, 454 Mich at 659.

“An amendment is futile where, ignoring the substantive merits of the claim, it is legally insufficient on its face.” Tolbert v US Truck Co, 179 Mich App 471, 473 (1989), citing Formall, Inc v Community Nat’l Bank of Pontiac, 166 Mich App 772, 783 (1988).

 

 

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So I haven't been able to get back to this the past few days. Always seems to be something, I guess my next court issue after this will be over child  custody.  Can't seem to catch a break. 

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1 hour ago, Joker said:

So what all exactly did I need to post here from the paperwork I have received ? 

 

On 9/17/2017 at 8:28 AM, bmc100 said:

POST YOUR ANSWER, POST ALL THE EVIDENCE THEY SUPPLIED WITH THEIR COMPLAINT, DISCOVERY AND THEIR MSJ.

@Joker

I understand your life is presenting many challenges. Most people who find this forum are in a similar situation--that is being kicked while already down. The people who stay here to help others hope to put their hard-won experience to good use. We are volunteers with lives. We can't help you avoid an unhappy outcome when you miss deadlines and/or make errors that may be corrected with swift action, then fail to act swiftly.

1.) My suggestion is to re-read your thread.

2.) You've been given advice to motion for leave to amend your answer to include affirmative defenses like arb, including making a call to plaintiff to seek its prior agreement. A sample motion was posted with instructions to put in your own specific information in place of the information that does not apply to you. You need to redo your answer, add affirmative defenses and an affidavit that satisfies the account stated requirements that you should have done in the first answer. Post your drafts. 

3.) Because you failed to timely respond to the admissions requests, you've admitted them. We don't know what was admitted to. It may be game over for court. A motion to compel arbitration may be your last best hope. We need to see their motion for summary disposition to see how you should respond in opposition. You have a deadline to submit your brief in opposition.

If you feel you just can't  handle this work and can't devote concentrated effort to get this done asap, please let us know. Perhaps it would be in your best interest to avoid a court judgment and talk settlement. Others here may have different advice. 

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On ‎9‎/‎18‎/‎2017 at 9:21 AM, Joker said:

I'm trying currently to do a lot of this through my phone.  My answer actually was pretty limited. I used the basic court form and just hand wrote my answers. I was going to amend within the 14 days and submit my typed one I had started. Right after that I had a flood that  destroyed practically everything in my basement.   Took out my laptop, and printer... In the process of all that I missed the deadline to amend.  Since then its just been one thing after another.(when it rains it pours)   I did not list arbitration in my original answer.

Don't worry, I hand wrote my first answer also(45 minutes before the court closed). I think that the fact you haven't participated in discovery may actually be a good thying. In most states if you engage in discovery then you waive the right to arbitrate implicitly.  I would get that Motion to compel arbitration going QUICKLY. I would also put the fact that you had no indication a controversy existed until the service of court papers which violate the agreement.

Get that motion going fast. I know it is tough but you must be tough and get er done.

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@Joker

Here are general approved court forms available (similar to the fill-in answer civil form # mc 03 you used) on the link below. You have to go to lower left at bottom of list to click on arrow to go to next page. There  are 3 pages of general forms. You can fill them in or use them to create your own template. 

http://courts.mi.gov/administration/scao/forms/pages/general.aspx?&&p_Title=Order for Consolidation&&PageFirstRow=1&&View={65F7B95C-0197-4322-ABFB-AFBFD84E0CC0}

Blank  form # mc 04 (Has court heading only)

Proof of Mailing  # mc 302

Request for Hearing on a Motion #mc 325

Notice of Hearing and Motion #mc326

Order (for judge to sign) #mc 327

 

 

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