LaneBlane

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

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4 minutes ago, Brotherskeeper said:

@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.  

Here's the section from the arbitration agreement that protects me:

Broad Meaning of "Claims." The term "Claims" in this Arbitration Provision is to be given the broadest possible meaning and includes (by way of example and without limitation) Claims arising from or relating to (i) this Agreement, (ii) any transactions effected pursuant to this Agreement, (iii) terms of or change or addition of terms to this Agreement, (iv) collection of your obligations arising from this Agreement, (v) advertisements, promotions or oral or written statements relating to this Agreement or any transactions between us pursuant to this Agreement, including any Claims regarding information obtained by us from, or reported by us to, credit reporting agencies or others, (vi) Claims between you and us or our parent corporations, wholly or majority owned subsidiaries, affiliates, predecessors, successors, assigns, agents, independent contractors, employees, officers, directors or representatives arising from any transaction between us pursuant to this Agreement and (vii) Claims regarding the validity, enforceability or scope of this Arbitration Provision or this Agreement including but not limited to whether a given claim or dispute is subject to arbitration.

 

LEGAL DEFINITION OF ASSIGN

To transfer one's duty, interest, or right to another, especially regarding property or under a contract, so that the transferee has the same duty, interest, or right as the transferor had.  See also assignment and delegate. To appoint.

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@LaneBlane The defendant's motion to compel arb was denied by the judge because the defendant denied the complaint allegation that defendant entered into the account agreement with the original creditor, later assigned to the JDB. The judge said terms of a contract defendant denied ever entering into in the first place were unenforceable.

Here's some interesting language. http://debt-suit-litigation-in-texas.blogspot.com/2013/07/motion-to-dismiss-credit-card-debt-suit.html

On such and such date Plaintiff produced an account agreement titled Cardmember Agreement and designated CMA18103 or whatever. The proffered agreement contains arbitration provisions. Plaintiff had the obligation to fully respond to Defendant’s request for production regarding the contractual foundation of its claim, and was required to produce all material contract documents . The document produced by Plaintiff establishes conclusively that it relies on a contract that subject the claim asserted in this lawsuit to mandatory arbitration, upon election of either party. The document is admissible against Plaintiff because Plaintiff produced it in discovery. 
 …. or …

By moving for summary judgment with CMA 37964 Plaintiff represents to the court, and thus judicially admits, that the contract upon which it relies subjects its claim to mandatory arbitration because said version of a Cardmember Agreement contains an arbitration clause to that effect.  

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@LaneBlane

Here's how one Texas (?) attorney handled the issue of doubt about contract formation. I apologize, but I don't have a link to the source of this. 

"Should the court determine that the Plaintiff has established that the cardmember agreement offered by it as a summary judgment exhibit is the one that governs the parties’ relationship, despite the absence of conclusive evidence of contract-formation, the court should give effect to defendant’s right to have the dispute resolved by arbitration, instead of litigation. "

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"Why do you want arbitration".  JAMS is a more informal setting with easier rules to navigate and I would be more comfortable as a pro-se in that setting. I also have a contractual right to arbitration and the Supreme Court agrees that arbitration, when present in a contract, is the preferred method of dispute resolution.

Its getting a bit ahead, but if your MTC is denied, then you have the right to an interlocutory appeal.  Check your court rules on how and the time allowed to do this.  An interlocutory appeal is an appeal to a higher court on one issue of a case (which is still ongoing) rather than an entire case.  You can ask the higher court to review the judge's denial of the MTC and ask to over turn the decision based on the Supreme Court.

But like I said, that is to worry about later and hopefully won't even matter.

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1 hour ago, Brotherskeeper said:

@LaneBlane The defendant's motion to compel arb was denied by the judge because the defendant denied the complaint allegation that defendant entered into the account agreement with the original creditor, later assigned to the JDB. The judge said terms of a contract defendant denied ever entering into in the first place were unenforceable.

Here's some interesting language. http://debt-suit-litigation-in-texas.blogspot.com/2013/07/motion-to-dismiss-credit-card-debt-suit.html

On such and such date Plaintiff produced an account agreement titled Cardmember Agreement and designated CMA18103 or whatever. The proffered agreement contains arbitration provisions. Plaintiff had the obligation to fully respond to Defendant’s request for production regarding the contractual foundation of its claim, and was required to produce all material contract documents . The document produced by Plaintiff establishes conclusively that it relies on a contract that subject the claim asserted in this lawsuit to mandatory arbitration, upon election of either party. The document is admissible against Plaintiff because Plaintiff produced it in discovery. 
 …. or …

By moving for summary judgment with CMA 37964 Plaintiff represents to the court, and thus judicially admits, that the contract upon which it relies subjects its claim to mandatory arbitration because said version of a Cardmember Agreement contains an arbitration clause to that effect.  

Thank you for providing this information.

This is an excellent way to see things.   Because the plaintiff mentioned the loan agreements in their request for admissions, and provided copies of each agreement as evidence,  they are essentially the ones who entered the arbitration agreement into evidence. 

If the plaintiff opposes my MTC, I can see myself using this point to defend my MTC.  It also seems like excellent language for a MSJ, if it comes to that.

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1 hour ago, fisthardcheese said:

"Why do you want arbitration".  JAMS is a more informal setting with easier rules to navigate and I would be more comfortable as a pro-se in that setting. I also have a contractual right to arbitration and the Supreme Court agrees that arbitration, when present in a contract, is the preferred method of dispute resolution.

Its getting a bit ahead, but if your MTC is denied, then you have the right to an interlocutory appeal.  Check your court rules on how and the time allowed to do this.  An interlocutory appeal is an appeal to a higher court on one issue of a case (which is still ongoing) rather than an entire case.  You can ask the higher court to review the judge's denial of the MTC and ask to over turn the decision based on the Supreme Court.

But like I said, that is to worry about later and hopefully won't even matter.

Thank you.  This is exactly the answer I had planned to prepare myself with, just in case I needed to appear in court and was asked.

Now that I know the plaintiff's possible reasons for opposing my MTC, I'm feeling fairly confident right now.

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I just checked my credit scores and discovered the JDB has raised the balance they claim I owe.  It's gone up about $1,000 since last December.  Likewise, my credit score has gone way down, too.

This is the only negative mark I have on my credit.  I've already sent disputes to Equifax, Experian, and TransUnion.  The JDB verified the information.

Short of reaching a settlement, how can a consumer have a JDB's negative information removed from their reports?

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Deal with one thing at a time. We can deal with the credit reports later. Right now, you need to put all your energy into this case and winning it (or at least stopping the JDB from continuing the fight). You can deal with the credit report later.

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12 hours ago, LaneBlane said:

I just checked my credit scores and discovered the JDB has raised the balance they claim I owe.  It's gone up about $1,000 since last December.  Likewise, my credit score has gone way down, too.

This is the only negative mark I have on my credit.  I've already sent disputes to Equifax, Experian, and TransUnion.  The JDB verified the information.

Short of reaching a settlement, how can a consumer have a JDB's negative information removed from their reports?

I agree to deal with one thing at a time, however, does your current credit report now show a different amount than what they are suing you for?  If yes, then I would mail in a dispute to all the CRAs saying that the balance is incorrect.  If the balance is verified as correct by the CRAs and it remains different from the suit amount, then I would file that FCRA violation as part of my JAMS claims against them.

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You guys are right... one thing at a time.

I don't believe the plaintiff has revised the amount they claim I owe with the court.  Their complaint says they are entitled to attorney's fees and interest, among other things.  Therefore, the amount they're claiming can and will go up.

My response/objections to their discovery should be ready to go by Wednesday.

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40 minutes ago, LaneBlane said:

You guys are right... one thing at a time.

I don't believe the plaintiff has revised the amount they claim I owe with the court.  Their complaint says they are entitled to attorney's fees and interest, among other things.  Therefore, the amount they're claiming can and will go up.

My response/objections to their discovery should be ready to go by Wednesday.

No, the amount they report to your credit reports can not be more than they are currently suing for otherwise it is a violation of the FCRA.  No one has awarded them costs or fees, so they are not entitled to them and can not claim them as part of what you owe until and unless a judge says so.  I sure would want to know if they are violating FCRA when I filed my JAMS claims.  That is extra leverage to use against them for a more favorable outcome.

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I would get the answers to their discovery ready and your discovery too BUT DO NOT SEND IT OUT until after the MTC is decided. Otherwise,  the court might say that you continued to go along with the process.

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This afternoon my attorney called me to let me know his Motion to Withdraw was granted, so he's officially off the case.  During the call, he said he wanted to make me aware the judge denied my Motion to Compel Arbitration because I failed to set a hearing date.  He recommended I contact the clerk to find out when the first available court date would be.

I went to the clerk's office this afternoon.  The clerk is on vacation, and the deputy clerk isn't very knowledgeable.   She checked the records of the case for me and found the document showing the judge granted my attorney's Motion to Withdraw.  There was nothing pertaining to my MTC - aside from the MTC itself.

I just checked the rules of civil procedure for MN and couldn't find any mention of having to set a court date when you file a motion.    I'm a little confused. 

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57 minutes ago, Brotherskeeper said:

Thanks for setting me straight.

All I did was file my MTC with one exhibit and a certificate of mailing to the plaintiff.  I didn't know I had to schedule a hearing.  Crap!

I suppose I need to refile the MTC and follow the other required steps.  It sounds like I won't receive any opposition from the plaintiff in advance.

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Everything is back on track.

I set a court date and resubmitted my MTC.  I also filed a notice of hearing and another document confirming the plaintiff was served with everything.

Tonight I'm going to prepare my answers to the plaintiff's interrogatories, request for production of documents, and request for admissions.  One version will be objections and the other will be responses, just in case I need to have these ready.

I don't know if the plaintiff is required to submit a response to the MTC or if they can show up on the trial date.  Does a plaintiff's opposition to an MTC need to be submitted to the court prior to a hearing?

 

 

 

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37 minutes ago, LaneBlane said:

I don't know if the plaintiff is required to submit a response to the MTC or if they can show up on the trial date.  Does a plaintiff's opposition to an MTC need to be submitted to the court prior to a hearing?

@LaneBlane It's always advised to check and be familiar with your court rules. 

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17 minutes ago, Brotherskeeper said:

@LaneBlane It's always advised to check and be familiar with your court rules. 

I've been looking through the rules of civil procedure and haven't been able to find anything that specifically addresses this issue.

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@LaneBlane Is this it? 

https://www.revisor.mn.gov/court_rules/rule.php?type=gp&id=115

Rule 115.03Dispositive Motions

(a) Service by Moving Party. No motion shall be heard until the moving party pays any required motion filing fee, serves the following documents on all opposing counsel and self-represented litigants, and files the documents with the court administrator at least 28 days prior to the hearing:

(1) Notice of motion and motion;

(2) Proposed order;

(3) Any affidavits and exhibits to be submitted in conjunction with the motion; and

(4) Memorandum of law.

(b) Response to Motion. The party responding to the motion shall pay any required motion filing fee, serve the following documents on all opposing counsel and self-represented litigants, and file the documents with the court administrator at least 9 days prior to the hearing:

(1) Memorandum of law; and

(2) Supplementary affidavits and exhibits.

(c) Reply Memoranda. The moving party may submit a reply memorandum, limited to new legal or factual matters raised by an opposing party's response to a motion, by serving it on all opposing counsel and self-represented litigants and filing it with the court administrator at least 3 days before the hearing. 

 

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Is your motion dispositive or non-dispositive? Dismiss or stay? 

Rule 115.01Scope and Application
This rule shall govern all civil motions, except those in family court matters governed by Minn. Gen. R. Prac. 301 through 379 and in commitment proceedings subject to the Special Rules of Procedure Governing Proceedings Under the Minnesota Commitment and Treatment Act.
(a) Definitions. Motions are either dispositive or nondispositive, and are defined as follows:
(1) Dispositive motions are motions which seek to dispose of all or part of the claims or parties, except motions for default judgment. They include motions to dismiss a party or claim, motions for summary judgment and motions under Minn. R. Civ. P. 12.02(a)-(f).
(2) Nondispositive motions are all other motions, including but not limited to discovery, third party practice, temporary relief, intervention or amendment of pleadings.

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4 minutes ago, Brotherskeeper said:

Is your motion dispositive or non-dispositive? Dismiss or stay? 

Rule 115.01Scope and Application
This rule shall govern all civil motions, except those in family court matters governed by Minn. Gen. R. Prac. 301 through 379 and in commitment proceedings subject to the Special Rules of Procedure Governing Proceedings Under the Minnesota Commitment and Treatment Act.
(a) Definitions. Motions are either dispositive or nondispositive, and are defined as follows:
(1) Dispositive motions are motions which seek to dispose of all or part of the claims or parties, except motions for default judgment. They include motions to dismiss a party or claim, motions for summary judgment and motions under Minn. R. Civ. P. 12.02(a)-(f).
(2) Nondispositive motions are all other motions, including but not limited to discovery, third party practice, temporary relief, intervention or amendment of pleadings.

My motion is dispositive.

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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If the Judge dismisses the complaint or stays the proceedings pending arbitration, I'll immediately file with JAMS.  I'll bring the completed JAMS forms to the hearing on my MTC to show the court I'm ready to proceed with arbitration without delay.

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I would have gone for a stay rather than a dismissal. A stay will keep the case in civil court where they cannot refile. With a dismissal, there is a chance of them refiling in small claims court. Other than that, be ready to respond in writing or in court if they show up ready to argue. Another thing I would be doing is going through the RCP front and back as well as seeing if I cannot find any case law backing up the MTC in case they decide to oppose it. Have your answers and discovery questions ready to serve on them.

I would also look at the arbitration contract carefully to see if there is any ambiguous wording that would be to your advantage. I just saw a contract on this board where the only mention of small claims court was where the creditor would not attempt to compel arbitration if the case was filed by the debtor in small claims court. I would take that to mean that the debtor can request arbitration even if the case was file in small claims by the creditor. When it comes to ambiguous language, the interpretation is given to the non-writer of the contract.

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4 hours ago, WhoCares1000 said:

I would have gone for a stay rather than a dismissal. A stay will keep the case in civil court where they cannot refile. With a dismissal, there is a chance of them refiling in small claims court. Other than that, be ready to respond in writing or in court if they show up ready to argue. Another thing I would be doing is going through the RCP front and back as well as seeing if I cannot find any case law backing up the MTC in case they decide to oppose it. Have your answers and discovery questions ready to serve on them.

If the judge grants the MTC arbitration and the OP files a claim with JAMS, the plaintiff would have to pay its share of the arbitration fees.  If it doesn't do so, JAMs dismisses the claim, and the plaintiff tries to refile in small claims, all the OP has to do is show the judge's order and how the plaintiff failed to pay its fees.

4 hours ago, WhoCares1000 said:

I would also look at the arbitration contract carefully to see if there is any ambiguous wording that would be to your advantage. I just saw a contract on this board where the only mention of small claims court was where the creditor would not attempt to compel arbitration if the case was filed by the debtor in small claims court. I would take that to mean that the debtor can request arbitration even if the case was file in small claims by the creditor. When it comes to ambiguous language, the interpretation is given to the non-writer of the contract.

Even if the agreement has a small claims exclusion, in the event the judge grants the MTC in the current lawsuit, one could make the argument that the plaintiff lost its chance to sue when it failed to pay arbitration fees.

Assuming the cc agreement contains the same language as the agreement in the other thread, it's not ambiguous.  Any creditor, JDB, or attorney who tries to claim that the language excludes small claims actions is either dense or intentionally misinterpreting the meaning of the sentence.

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