LaneBlane

Attacking a JDB’s Standing | Need to Respond to Interrogatories, RPD, RA

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Here's another question.

I had an attorney prepare my Answer to the Plaintiff's Complaint.   My attorney is going to file a motion with withdraw because I wanted to take care of everything else on my own.

Should I add a statement in my Motion to Compel Arbitration that says I am no longer being represented by council?

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The court will order you to initiate JAMS if you request arbitration so you will need to get that started, not the JDB. I suggest research the arbitration forum on this board to see what to do as that is outside my realm of expertise.

As for the case, my guess is that you are trying to not give any information about the case because JDBs troll these boards which is a valid concern. However, not knowing the aspects of the case means that we cannot give out good advice. Are you saying that this case involves 10 loans that are rolled up into one big one? If that is the case, I would still submit one agreement and state in the motion that the other 9 contain similar clauses. When the motion is heard in front of the judge (yes, you will need to go in front of a judge in regards to the motion because you can expect the JDB to fight it and you will have no one but yourself to make the argument), have all 10 agreements in front of your to present to the judge should they ask for it. The alternative would be to submit a copy of the arb clause only for all 10 agreements but have them ready to present when arguments are made.

As for the lawyer thing, I am not sure how to deal with that because most people do not hire a lawyer and then give them up.

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6 hours ago, WhoCares1000 said:

As for the case, my guess is that you are trying to not give any information about the case because JDBs troll these boards which is a valid concern. However, not knowing the aspects of the case means that we cannot give out good advice. Are you saying that this case involves 10 loans that are rolled up into one big one? If that is the case, I would still submit one agreement and state in the motion that the other 9 contain similar clauses. When the motion is heard in front of the judge (yes, you will need to go in front of a judge in regards to the motion because you can expect the JDB to fight it and you will have no one but yourself to make the argument), have all 10 agreements in front of your to present to the judge should they ask for it. The alternative would be to submit a copy of the arb clause only for all 10 agreements but have them ready to present when arguments are made.
 

This case involves 10 individual loan agreements.  They haven't been rolled up into a single loan agreement.  They're still individual agreements.  However, the Plaintiff has not broken them down by stating I owe $xxxx on Agreement A, $xxxx on Agreement B, etc.

The attorney in this case is about two hours away from the court house.  If they show up for the motion, that would be a pretty hefty bill for the JDB who is out of state.

I'll post my MTC in just a moment.  I'm making a few changes.

Thanks!

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MOTION TO COMPEL ARBITRATION

 

 

 


COMES NOW the Defendant, xxxxxxxxxxxxxxxx, pro se, submits this Motion to Compel Arbitration.  Defendant states as follows:

 

 

1.   That on or about xxxxxxxxxx, Defendant was served with Plaintiff’s Complaint.

2.   Defendant filed their Answer to Plaintiff’s Complaint on xxxxxxxxxxx, through their attorney, xxxxxxxxxxxxxxxx.

3.   Defendants’ attorney, xxxxxxxxxxxxx, has withdrawn from the case.


4.   Defendant moves this court to compel binding arbitration based on the terms and conditions of the Loan Agreement dated xxxxxxxxxx.  (see Exhibit 1 attached).

5.   The other Loan Agreements that are part of Plaintiff’s action include a similar Agreement to Arbitrate Claims and a Small Claims Court option.


6.   The parties are bound by the Loan Agreements. These agreements include an Agreement to Arbitrate Claims and a Small Claims Court Option that states among other things:

a)      Any dispute, which cannot be adjudicated within the jurisdiction of a small claims tribunal (including claims transferred by the small claims tribunal to another court) shall be resolved by binding arbitration.

B)      Any Claim resolved by binding arbitration will be pursuant to (a) the Arbitration Provision and (b) the code of procedure of the national arbitration organization to which the Claim is referred.

c)      A Claim is defined as any dispute or controversy (whether in contract, tort, or otherwise) past, present or future.

d)     The Arbitration Provision is made pursuant to a transaction involving interstate commerce, and will be governed by the Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1 et seq., as amended, notwithstanding any other governing law provision in this Agreement.

 

 


7.   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”.  9 U. S. C. §2

8.   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 . . . "


9.   The Defendant elects arbitration to settle this dispute.


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

 

 

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As someone said before, there is probably a cost limiting agreement between the attorney and the JDB that limits the costs in the event of a loss so the the attorney could still probably show up.  Another thing JDB's like to do is use a huge office in the state and then for the cases that need a local attorney present, the hire a local attorney to deal with that. The attorney's office could also send their 1st year out of law school clerk who need the experience and will run cheaper than a regular attorney.

As for the 10 agreements, apparently they are rolled up into one case somehow because otherwise they would have to sue you 10 time or decide which agreement applies to this debt rather than send 10 agreements and have them in one case.

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3 hours ago, WhoCares1000 said:

As someone said before, there is probably a cost limiting agreement between the attorney and the JDB that limits the costs in the event of a loss so the the attorney could still probably show up.  Another thing JDB's like to do is use a huge office in the state and then for the cases that need a local attorney present, the hire a local attorney to deal with that. The attorney's office could also send their 1st year out of law school clerk who need the experience and will run cheaper than a regular attorney.
 

I've never had to appear in civil court before.  Even though the thought makes me a little nervous, I believe I can hold my own.  I just need to prepare myself to respond to some objections they may make and familiarize myself with the Federal Arbitration Act.

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3 hours ago, WhoCares1000 said:

As for the 10 agreements, apparently they are rolled up into one case somehow because otherwise they would have to sue you 10 time or decide which agreement applies to this debt rather than send 10 agreements and have them in one case.

This is the thing that still puzzles me.  There are 10 separate loan agreements with different dates.  In their complaint, the plaintiff said I breached a "series" of loan agreements.  In their request for admissions, the Plaintiff listed each agreement separately.  There were two statements for each agreement:   1) Admit you entered into a loan agreement in the amount of $xxx on [date].  2) Admit Exhibit 1 is a true and correct copy of the loan agreement dated xxx.

It makes it very difficult to approach a defense when I have no idea how much they claim is owed on any particular agreement.   Most of these agreements have been paid off.   Because they don't want to take the time to figure out the balance of each agreement, they've dumped them all in a pile and are saying, defendant still owes $xxx.   If they don't break things down, how can they possibly prove their claim?  If they're asked how much they claim I owe on the agreement dated xxxxxx, they wouldn't know.

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13 hours ago, WhoCares1000 said:

The court will order you to initiate JAMS if you request arbitration so you will need to get that started, not the JDB. I suggest research the arbitration forum on this board to see what to do as that is outside my realm of expertise.

I don't really have an issue initiating JAMS.   I feel much more comfortable in that forum than in civil court.   I have no experience with arbitration, but it seems more 'pro se' friendly.

The arbitration agreement says the other party "... will advance or reimburse filing fees and other costs or fees of arbitration."   From what I've seen, the filing fee for a consumer is $250.

Do you have any feedback on my MTC?

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Here is JAMS' minimum standard when it comes to the cost of arbitration:

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

 

My arbitration agreement says "Streamlined arbitration procedures will be used if they're available."   Here are the rules & procedures for streamlined:  https://www.jamsadr.com/rules-streamlined-arbitration/

Does anyone know if a consumer can file for streamlined arbitration and still be protected by the Consumer Minimum Standards?

 

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10 hours ago, LaneBlane said:

This is the thing that still puzzles me.  There are 10 separate loan agreements with different dates.  In their complaint, the plaintiff said I breached a "series" of loan agreements.  In their request for admissions, the Plaintiff listed each agreement separately.  There were two statements for each agreement:   1) Admit you entered into a loan agreement in the amount of $xxx on [date].  2) Admit Exhibit 1 is a true and correct copy of the loan agreement dated xxx.

It makes it very difficult to approach a defense when I have no idea how much they claim is owed on any particular agreement.   Most of these agreements have been paid off.   Because they don't want to take the time to figure out the balance of each agreement, they've dumped them all in a pile and are saying, defendant still owes $xxx.   If they don't break things down, how can they possibly prove their claim?  If they're asked how much they claim I owe on the agreement dated xxxxxx, they wouldn't know.

That would be a possible argument in front of a judge or arbiter (or if this stays in civil court, you can request that in discovery). You cannot tell what, if anything is owed because these were lumped together without any consideration to payment. You request an itemized accounting of each individual loan.

@fisthardcheese, can you look at this thread and review the OP's MTC and answer some of the OP's questions regarding arb? That is more your specialty.

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I started a new thread in the Arbitration board.  There seem to be several users well versed on this topic.  I don't believe I've received a reply yet.  I also reached out to @fisthardcheese directly.

Do you know of any circumstance that would cause a judge to keep this in Civil Court?

As always, thanks for your continued help.

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I filed my MTC today.  I read through it with a fine tooth comb and made some slight changes.

I included the Certificate of Mailing and sent copies to the Plaintiff's attorney.

 

I'm going to get my response to the Plaintiff's first set of interrogatories, request for production of documents, and request for admissions ready to go... just in case.

Does my Motion to Compel Arbitration stop the clock on my deadline to respond to these? 

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I cannot tell you that. My guess would be that the judge will compel you to submit your answers at that time and you can even submit them to the plaintiff in front of the court if they are ready by the hearing date. I would get together discovery questions to ask them too, again just in case the MTC is denied.

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Most states in their civil rules will allow a Motion for Summary Judgement for a lack of standing. I know in Michigan the assignment needs to be attached to the complaint, which most JDBs attach the bill of sale, an account statement and an affidavit from someone at the JDB to make it look like they have standing. An affidavit from a JDB who claims to have personal knowledge of the account is nothing but HEARSAY.

If your court rules allow it, instead of filing a motion, file an MSJ for standing. The JDB will need to show proof they have standing or the case gets dismissed.

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1 hour ago, bmc100 said:

Most states in their civil rules will allow a Motion for Summary Judgement for a lack of standing. I know in Michigan the assignment needs to be attached to the complaint, which most JDBs attach the bill of sale, an account statement and an affidavit from someone at the JDB to make it look like they have standing. An affidavit from a JDB who claims to have personal knowledge of the account is nothing but HEARSAY.

If your court rules allow it, instead of filing a motion, file an MSJ for standing. The JDB will need to show proof they have standing or the case gets dismissed.

In my Answer, I used Lack of Standing as one of my affirmative defenses.   Here's what I received as proof of ownership from the Plaintiff...

My loan agreements were between [Acme Lending] and me.  The JDB claims they purchased the loan from [ABC Lending].  In order to show transfer of ownership from [Acme Lending] to [ABC Lending], they provided a copy of an agreement titled Non-Recourse Receivables Purchase Agreement.  The agreement says all receivables existing would be sold and assigned by seller to buyer.

When we get into the document they claim transfers ownership from [ABC Lending] to the JDB, they only provided a short, half-page document titled Bill of Sale and Assignment.  This is signed by the General Counsel of [ABC Lending].  This document assigns all of rights, title, and interest in and to “certain charged-off accounts” listed on an attached schedule.  The only attachment is one line of text that includes the name of the JDB, an account number, my business name, and my name.

Neither document/agreement is notarized.  There are no affidavits.

Today I filed a Motion to Compel Arbitration.   If I'm making a motion that this case doesn't belong in Civil Court, I'm not sure if I should make another motion asking for the court to make a decision based on Lack of Standing.

Does anyone have experience with a MSJ for Lack of Standing?

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@LaneBlane

@bmc100

The MTC has already been filed.  

While one might be allowed to first file a MSJ for lack of standing, it might cause the defendant to waive his right to arbitrate.

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I would not bother with that right now, first see if the MTC works. If not, then you attack whether they have standing to sue. Part of being a pain in the neck is to have a multi-pronged attack so that you wear the opposition down. In fact, if you can get together about $1000, you might be able to settle this as it goes along (for all loans) simply to go away. People who have submitted MTCs and become a PITA in court have settled cases like this and more for that amount. Even the military uses a multi-pronged attack and you are at war too.

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Thanks for the additional input.

Have you heard of any situations where a judge denied a MTCA when a contract had a solid agreement to arbitrate?   The only thing I can think of is the fact that I filed an Answer to their Complaint.   I felt I had to in order to avoid a default judgment.  My lawyer also provided me with incorrect information when it came to using the arbitration agreement as a defense.

I read on another thread (have it saved somewhere) that I can ask the judge to stay the case pending an appeal of their ruling if they rule against my MTCA.  (This seems like a good way to potentially piss off a judge.)

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1 hour ago, LaneBlane said:

I read on another thread (have it saved somewhere) that I can ask the judge to stay the case pending an appeal of their ruling if they rule against my MTCA.  (This seems like a good way to potentially piss off a judge.)

Minnesota Statutes

572B.28 APPEALS.

(a) An appeal may be taken from:

(1) an order denying a motion to compel arbitration;

(b) An appeal under this section must be taken as from an order or a judgment in a civil action.

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On 9/22/2017 at 9:52 PM, bmc100 said:

Most states in their civil rules will allow a Motion for Summary Judgement for a lack of standing. I know in Michigan the assignment needs to be attached to the complaint, which most JDBs attach the bill of sale, an account statement and an affidavit from someone at the JDB to make it look like they have standing. An affidavit from a JDB who claims to have personal knowledge of the account is nothing but HEARSAY.

If your court rules allow it, instead of filing a motion, file an MSJ for standing. The JDB will need to show proof they have standing or the case gets dismissed.

I would strongly caution against doing this before one attempts the MTC first.  If an MTC is denied, then there is nothing stopping a defendant from then trying the MSJ if they so choose.  However, doing the MSJ first and being denied can then also cause the MTC to be denied for availing yourself to the court process and waiving your jurisdictional challenge.  You can't ask the court to rule on MSJ and then also say the court has no jurisdiction to hear the case (MTC).

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On 9/23/2017 at 10:40 AM, LaneBlane said:

Thanks for the additional input.

Have you heard of any situations where a judge denied a MTCA when a contract had a solid agreement to arbitrate?   The only thing I can think of is the fact that I filed an Answer to their Complaint.   I felt I had to in order to avoid a default judgment.  My lawyer also provided me with incorrect information when it came to using the arbitration agreement as a defense.

I read on another thread (have it saved somewhere) that I can ask the judge to stay the case pending an appeal of their ruling if they rule against my MTCA.  (This seems like a good way to potentially piss off a judge.)

The other side has a chance to file an opposition to your MTC.  If they do, you will have to see what issues they raise in their opposition.  A judge would have to agree with one of their objections in order to deny your MTC.  If they do not file an opposition, then your MTC should be granted as unopposed.

If they file an opposition, let us know what it says and we can point to arguments previously used to respond to their opposition. 

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2 hours ago, fisthardcheese said:

The other side has a chance to file an opposition to your MTC.  If they do, you will have to see what issues they raise in their opposition.  A judge would have to agree with one of their objections in order to deny your MTC.  If they do not file an opposition, then your MTC should be granted as unopposed.

If they file an opposition, let us know what it says and we can point to arguments previously used to respond to their opposition. 

Part of me hopes the strategy of the JDB's attorney (also a collection agency) is two-part:  1) Attempt to get a default judgment;  if that fails  2) Send discovery in anticipation of filing a MSJ based on the answers.  If neither of these happen, or if the court approves my MTC,  the JDB would then need to decide if pursuing this is worth an additional investment.

I'll let you know when and if the other side files an opposition.

By the way, can I file with JAMS now, or should I wait for the court to make a decision on my MTC?

Thanks for the continued help.

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16 minutes ago, LaneBlane said:

Part of me hopes the strategy of the JDB's attorney (also a collection agency) is two-part:  1) Attempt to get a default judgment;  if that fails  2) Send discovery in anticipation of filing a MSJ based on the answers.  If neither of these happen, or if the court approves my MTC,  the JDB would then need to decide if pursuing this is worth an additional investment.

I'll let you know when and if the other side files an opposition.

By the way, can I file with JAMS now, or should I wait for the court to make a decision on my MTC?

Thanks for the continued help.

I would not file in JAMS until MTC is granted.  It could be helpful, if the MTC goes to a hearing, to have the JAMS forms printed, filled out and ready to file and to bring those papers to the hearing with you.  This can show the judge you are serious about arbitration, know what you are doing and are ready to file the same day.  Not that those things SHOULD matter based on the Supreme Court rulings on arbitration, but we have seen it help others in similar situations here.

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49 minutes ago, fisthardcheese said:

I would not file in JAMS until MTC is granted.  It could be helpful, if the MTC goes to a hearing, to have the JAMS forms printed, filled out and ready to file and to bring those papers to the hearing with you.  This can show the judge you are serious about arbitration, know what you are doing and are ready to file the same day.  Not that those things SHOULD matter based on the Supreme Court rulings on arbitration, but we have seen it help others in similar situations here.

I'll be sure to have the forms ready.

Is there a chance the judge will ask me a question regarding the reason I want to move this to arbitration, or what my defense is?  I'm going to be prepared with a response.   I just thought it wouldn't be an appropriate question for them to ask.

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On 9/23/2017 at 10:40 AM, LaneBlane said:

Have you heard of any situations where a judge denied a MTCA when a contract had a solid agreement to arbitrate?  

@LaneBlane There was a poster from Michigan who had the MTCA denied.  If I recall correctly, the judge ruled that she could not enforce a contract that the defendant flat out denied being a party to with the original creditor in the Answer.  

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