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...which is a totally natural reaction. I was also terrified that this whole thing was a scam that would backfire, that I fought everything in court. I got lucky, but those were also different times.

As I've mentioned many times, I know a retired collections lawyer. When I told him how people online are winning using arbitration, he said it wasn't prevalent when he as practicing, but when it came up, he would recommend that colleagues dismiss without wasting time on a losing cause. That's what every lawyer that lies in a hallway gets told when they get back to the office.

I've had long arguments, both in threads in via messaging, were I pose different ways in which debt buyers could beat arbitration, and I get shot down every time. If there was a silver-bullet, they would have found it. OC's like Discover and AMEX, have chosen to arbitrate, as part of a zero-tolerance policy, but all that does is cost them money. 

This is also why I get so dogmatic about two seemingly minor points - (1) the amount a debt buyer pays for a debt and (2) the concept that buying and suing to collect defaulted debt is somehow 'illegal.' These two points cause people to look at "fighting in court" as viable alternative. Folks here have refined arbitration into a fool-proof process that simply works. Trust the process.

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15 hours ago, cshot37 said:

@fisthardcheese If OP has a MTC that has been approved doesn't that mean that the court is telling the JDB to take their case to arbitration and that the JDB has to file the claim with either JAMS or AAA?  I know that it would always be best for the OP to wait a couple of weeks and if they have not heard anything at least submit the paperwork to JAMS or AAA requesting that JDB pays for all fees just to prove to the court that even though JDB refuses to follow a court order you did the work for them anyway, which may be grounds for sanctions or (if lucky enough) dismissal with prejudice.

I always suggest that the defendant file the case in arbitration immediately after the MTC is granted by the court.  Unless it is a very rare case where the judge orders the plaintiff to file the case, there is no reason to wait.  You asked the court for arb and it was granted, so you better get on filing the arbitration or the court may not look too kindly on you.

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12 hours ago, TakeMidlandD0wn said:

I'm definitely overthinking this.

The legal aid advise was poor.

#1, sure you CAN file something like that in court, but if you can do it the proper way, why wouldn't you?  Type it up properly and impress the judge and catch the other side off guard with your knowledge that other consumers don't have in court.

#2, Do NOT ask for "everything they have".  This could be considered a discovery request and could be harmful to your MTC.  Remember, when you file an MTC, the ONLY thing that should be covered in court at that point is your MTC.  Any back and forth over issues should ONLY be about the arbitration issue.  Who cares what they have at this point.  All of that will be dealt with after they pay JAMS $5,000 to start the arbitration.  Once you state that court has no jurisdiction and this case belongs in arbitration, you suddenly make anything about the alleged debt irrelevant in court.  Now we are only arguing that arbitration is proper and why.  Everything about the alleged debt is shoved to the back seat and only dealt with once arbitration is started (which won't happen).

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10 hours ago, fisthardcheese said:

Once you state that court has no jurisdiction and this case belongs in arbitration, you suddenly make anything about the alleged debt irrelevant in court.

Do I need to state that the court has no jurisdiction? I haven't done that. Also, I have another couple of points to ask about:

1. I can't find out if I need to file my answers first or not at all in Oklahoma. I know this is different in every state. In some, answering waives arbitration, in others you have to answer before you motion. The only thing I can find is in Title 12, section 2012 of Oklahoma statutes et seq. which talk about this. But I don't want to interpret the law without something to back me up.

2. In state law, I have to allege that they refused arbitration. Do I call and record the conversation? I found that in california, you don't even have to formally ask, you can just allege basically on the proof that you aren't in arbitration already. But is that true for Oklahoma?

3. Here is my Memorandum so far, does it need anything else?

 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND TO COMPEL PRIVATE/ CONTRACTUAL ARBITRATION

 

The undersigned respectfully requests that this Court compel arbitration per the agreement through JAMS under its Commercial Arbitration Rules now in effect. This is appropriate as Oklahoma has established a policy of favoring arbitration, the parties are both subject to a valid arbitration agreement, and the arbitration clause contained in the Agreement is clear and unambiguous. As such, this Court should compel arbitration.

                                                                                             I.                        Statement of the Law and Facts

On January 2, 2018, the Defendant received a copy of the Plaintiff's Summons and Petition for Indebtedness.

Plaintiff’s Affidavit of Indebtedness alleges that the defendant opened a WebBank account on 2013-02-16, which was then sold to Dell Financial Services L.L.C. on or about 2016-11-28.

 

A.                 Credit Agreement and Arbitration Clause

The Defendant found and retrieved a copy of the original Credit Agreement (Exhibit A, hereinafter “Agreement”) from the Consumer Financial Protection Bureau’s (“Bureau”) website, which pertains and belongs to the WebBank Account in question. The Bureau maintains a database of credit card agreements from hundreds of card issuers. This is accomplished through the application of Regulation Z.

Regulation Z (12 CFR 1026) as issued by the Bureau to implement the Federal Truth in Lending Act –which is contained in title I of the Consumer Credit Protection Act, as amended 15 U.S.C. 1601 et seq.—requires creditors to submit all Credit Agreements to the Bureau and onto their websites, publicly available.

The original Agreement includes an arbitration clause. The Arbitration Clause is valid and enforceable and the Agreement is clear and unambiguous. The Agreement states (emphasis added):

1. “For the purposes of this arbitration provision, the terms “we” and “us” shall mean WebBank and Dell Financial Services L.L.C., their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors, assigns and any purchaser of the Account or any receivables arising from the use of the Account, and each of their respective employees, directors and representatives.”

The Plaintiff claims to be the assign of the account and is, therefore, subject to this Agreement.

2. “Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement (“Claim”) shall be decided, upon the election of you or us, by binding arbitration.”

            Defendant elects arbitration.

3. “The party initially requesting arbitration shall select either the American Arbitration Association (“AAA”) or JAMS (originally, Judicial Arbitration and Mediation Services) as the arbitration administrator.”

Defendant selects JAMS.

4. “This arbitration provision shall survive termination of your Account as well as the repayment of all amounts you owe under the Agreement. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced…”

 

B.                  Applicable Law

 

1. Oklahoma Revised Uniform Arbitration Act

Oklahoma Statute title 12, §1856 states: "[A]n application for judicial relief under the Uniform Arbitration Act must be made by application and motion to the court and heard in the manner provided by law or rule of court for making and hearing motions."

The Defendant hereby applies and motions the court pursuant to this statute.

Oklahoma Statute title 12, § 1857(A) states: “An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.”

This section is a clear expression of Oklahoma's policy favoring arbitration agreements. The limited resources of the court should not be wasted upon a suit wherein exists a contract or agreement for which there is a valid and enforceable arbitration clause. See, Voss v. City of Oklahoma City, 1980 OK 148, 618 P.2d 925 and/or Rollings v. Thermodyne Indust., Inc., 1996 OK 6, 910 P.2d 1030.

Oklahoma Statute title 12, §1858 (A) states: “On application and motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement . . . If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. The court may also tax costs against the party opposing the motion if the court concludes the opposition was not brought in good faith.

The Defendant, having applied and motioned, and showing said agreement (attached below as Exhibit A), so alleges the Plaintiff’s refusal to arbitrate pursuant to the agreement.

Attached below and incorporated by reference is an Affidavit supporting the facts of this motion. (“Affidavit of Defendant”)

 

2. Federal Arbitration Act

The Federal Arbitration Act (the “FAA” or the “Act”) provides that written arbitration agreements are “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 (1999). The main purpose of the Arbitration Act is “to overcome courts’ refusals to enforce agreements to arbitrate.” Allied-Bruce, 513 U.S. at 270. In passing the FAA, Congress was “motivated first and foremost by a desire to change this [trend],… to enforce [arbitration] agreements into which parties had entered, and to place such agreements ‘upon the same footing as other contracts.’” Id. At 270-71 (citations omitted) (second alteration in original).

To fulfill the purpose of enforcing arbitration clauses more uniformly throughout the country, Congress established a broad principal of enforceability within the provisions of the FAA. Doctor’s Assoc. V. Casarotto, 517 U.S. 681, 685 (quoting Southland Corp. v. Keating, 465 U.S. 1, 11 (1984)). The Supreme Court has determined that “Congress would not have wanted state and federal courts to reach different outcomes about the validity of arbitration in similar cases.” Allied-Bruce, 513 U.S. at 72, citing Southland Corp., 465 U.S. at 15-16. Accordingly, the “the Court also concluded that the Federal Arbitration Act preempts state law; and it held that state courts cannot apply state statutes that invalidate arbitration agreements.” Id. Hence, the outcome should be the same in state and federal court, applying state or federal statutes.

 

C.                  Conclusion

 

Defendant respectfully requests that this Court compel the arbitration of the dispute between Plaintiff and Defendant. The parties are subject to a valid, clear and unambiguous arbitration agreement requiring arbitration of claims. A dispute has now arisen concerning Defendants’ alleged debt to the Plaintiff. As such, the arbitration provision in the agreement between the parties should be given its full force and effect and this case should proceed through final and binding arbitration before JAMS, formerly Judicial Arbitration and Mediation Services. Adequate time should be provided to Plaintiffs to file an appropriate Answer.

This lawsuit should be stayed pending binding arbitration. Oklahoma law (as articulated by both the Oklahoma Legislature and the Oklahoma Supreme Court), as well as the Federal Arbitration Act, uniformly hold that the arbitrability of disputes agreed upon in a written Contract or Agreement must be enforced.

Moreover, Oklahoma law consistently enforces the clear and unambiguous language of contracts, particularly broad arbitration provisions such as that presented here. In this case, the clear and unambiguous contractual provision requires arbitration of:

“[A]ny claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement.”

Pursuant to both the Oklahoma Revised Uniform Arbitration Act (12 Okla. Stat. §1851 et seq.) and the Federal Arbitration Act, this dispute should immediately be submitted to binding arbitration and this litigation stayed in the interim.

 

 

DATED this _____day of January, 2018.                                           ________________________

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UPDATE: Court Clerk told me that I HAVE to answer before anything. I can put my MTC in at the same time, but if I don't answer there will be a default judgement regardless of the MTC. 

I've already drafted answers, but how will my denials reflect on the common sense of my motion to compel arbitration?

Here are my answers:

In response to Plaintiff’s complaint, the Defendant responds as follows:

1.      In response to paragraph one of Plaintiff’s complaint:

a.       In response to the allegation that Webbank provided credit to the Defendant, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it.

b.      In response to the allegation of having, owning, or otherwise at any time being in possession or having dealings with an account number xxxxxxxxxxxxxxx9327, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it.

c.       In response to the allegation that the Defendant defaulted on this or any other obligation to Plaintiff, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it.

d.      In response to the allegation that the Defendant has been assigned to Plaintiff, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it.

2.      In response to paragraph two of Plaintiff’s complaint:

a.       In response to the allegation that Defendant owes Plaintiff $2,210.64, the Defendant is without sufficient information to either admit or deny the allegation and therefore denies it.

b.      In response to the assertion that an ‘Affidavit of Account’ is attached to the summons and incorporated by reference, the Defendant admits that he has received an attached copy of an ‘Affidavit of Indebtedness’ but has not received an ‘Affidavit of Account’ and therefore denies the allegation contained within.

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@Goody_Ouchless Okay. There is statutory law saying that I have to present the facts and laws in a statement and attach evidence. I would love to make it shorter, but how?

are there any allegations I should admit to or should I deny all of them? It seems to me that if I don't at least admit to having the original debt and account that there is no reason the judge should allow the arbitration.

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B. HOW PRESENTED. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

1. Lack of jurisdiction over the subject matter;

2. Lack of jurisdiction over the person;

3. Improper venue;

4. Insufficiency of process;

5. Insufficiency of service of process;

6. Failure to state a claim upon which relief can be granted;

7. Failure to join a party under Section 2019 of this title;

8. Another action pending between the same parties for the same claim;

9. Lack of capacity of a party to be sued; and

10. Lack of capacity of a party to sue.

It seems to be you file the answers to charges you listed above ("insufficient...blah, blah, deny,") and assert #1 and #3 as defenses. I will defer to Harry Seaward, as the italicized part may mean that MTC should accompany answer.

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@Goody_Ouchless Under rule 4 of the ORDC (Oklahoma Rules for District Courts), the party seeking to compel arbitration must present a statement of the law and facts showing an enforceable agreement to arbitrate the issues presented by the petition. The application to compel arbitration must be supported by affidavits, pleadings, stipulations, and other evidentiary materials which are verified by a person having knowledge of their accuracy."

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Furthermore, as stated in my Memorandum, state law also dictates that I also have to allege that they refused to arbitrate. Now, I just got off the phone with the atty for the plaintiff who told me that they "aren't going to arbitrate", but then waffled around and tried to get me to set up payments or something. When I pressed, they said that there was not an arbitration agreement. When I told them there, in fact, was and that I had gotten it from the CFPB, they told me that if the arbitration agreement wasn't on the reverse side of the CC bills they had, then it didn't exist. For five minutes they tried to tell me this and even said they would file a request for the rest of the paperwork (presumably from midland?) because they didnt have it. They even offered to send a request for debt verification for me. This is all AFTER they told me that it was in court pending litigation. Then they tried to say that we could both joint file an answer that the debt was valid and they owned it and i agreed to pay it. I said that I wouldn't do that because I had no proof that Midland owned the debt at all. They responded with crickets. 

I got it all recorded and luckily my wife is a professional transcriptionist and is going to transcribe the 25 minute phone call (I went through three people and 10 minutes of waiting) so I can add it to the pile to file. 

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#1 - In your answer I would deny everything.  I would then add a section under your denials titled "Affirmative defenses".  Under this title I would state that the defense of "Lack of subject matter jurisdiction" applies.  I would state that there is a valid arbitration agreement in the underlying contract and that defendant has chosen to elect arbitrtaion, therefore this court lacks jurisdiction over this subject matter.

#2 - There is a simple sample MTC on this board.  I will post is a little later.  You can add a line to include your state's case law on arbitration to the simple motion.  I would file both at the same time unless you are running out of time to file the answser, in which case I would file that on time and file the MTC a few days later if you need time.

#3 - when you file the MTC you will include a copy of the card agreement and you can include an affidavit that states to the best of your knowledge, the attached card agreement is a true and correct copy of the agreement that governs the alleged account in question and contains a valid arbitration clause.  That will cover your state requirements for evidence of an arbitration clause.

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6 minutes ago, TakeMidlandD0wn said:

Furthermore, as stated in my Memorandum, state law also dictates that I also have to allege that they refused to arbitrate. Now, I just got off the phone with the atty for the plaintiff who told me that they "aren't going to arbitrate", but then waffled around and tried to get me to set up payments or something. When I pressed, they said that there was not an arbitration agreement. When I told them there, in fact, was and that I had gotten it from the CFPB, they told me that if the arbitration agreement wasn't on the reverse side of the CC bills they had, then it didn't exist. For five minutes they tried to tell me this and even said they would file a request for the rest of the paperwork (presumably from midland?) because they didnt have it. They even offered to send a request for debt verification for me. This is all AFTER they told me that it was in court pending litigation. Then they tried to say that we could both joint file an answer that the debt was valid and they owned it and i agreed to pay it. I said that I wouldn't do that because I had no proof that Midland owned the debt at all. They responded with crickets. 

I got it all recorded and luckily my wife is a professional transcriptionist and is going to transcribe the 25 minute phone call (I went through three people and 10 minutes of waiting) so I can add it to the pile to file. 

I would stop calling your opponents and stop taking any "advice" they give you.  File the MTC.  They will either agree to it or oppose it in court.  If they oppose it, then they are "refusing" per state law and the judge then has the right to order it.  Don't over think it and especially don't continue talking to the people who are experts at fooling you into doing things you don't need to do or are irrelevant to getting a granted MTC.

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18 hours ago, Goody_Ouchless said:

Oh, brother. Oklahoma is a one-party record state, so now you have them, on the record, misrepresenting the debt by lying about the arbitration clause. Time to run that past a consumer attorney and get paid for their stupidity.

I don't know if a consumer attorney would take it.  Maybe, though. 

If not, I would just use it as my claims against them in arbitration and potentially leverage a settlement where they pay me to dismiss their lawsuit against me. :)

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@TakeMidlandD0wn

ar.google.com/scholar_case?case=18370469472809157223&q=motion+to+compel+arbitration&hl=en&scisbd=2&as_sdt=4,37

 8 The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-9, § 2 provides:

A written provision in ... 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 a 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.

Pursuant to § 2, "if the agreement ... evidences a transaction involving commerce, the FAA and accompanying federal law control, and the central provisions of the federal law must be applied by state courts. Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 1086*1086 79 L.Ed.2d 1 (1984)." Southern Oklahoma Health Care Corp. v. JHBR-Jones-Hester-Bates-Riek, Inc., 1995 OK CIV APP 94, ¶ 16, 900 P.2d 1017, 1020. That is to say, "[t]he FAA embodies a liberal policy favoring enforcement of arbitration agreements[,][and]... requires state and federal courts to honor arbitration agreements duly entered into by the parties and to order the parties to arbitrate their disputes when they have agreed to do so." Oncology & Hematology P.C. v. U.S. Oncology, Inc., 2007 OK 12, ¶ 21, 160 P.3d 936, 944. (Citations omitted.)

¶ 9 Consistent with the FAA, the OUAA likewise recognizes the validity and enforceability of arbitration provisions. 12 O.S. Supp.2006 § 1857.[1] So, ordinarily under both the FAA and OUAA, "[t]o assure that the parties have consented to arbitration, the courts will decide whether there is a valid enforceable arbitration agreement, whether the parties are bound by the arbitration agreement, and whether the parties agreed to submit a particular dispute to arbitration." Oncology & Hematology P.C., 2007 OK 12, ¶ 22, 160 P.3d at 944-945. (Citations omitted.)

I think you have complied with Rule 4.  This was just some OK case law for good measure.

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8 minutes ago, TakeMidlandD0wn said:

@debtzapper probably. I’ve pulled stuff from all over, rewriting some and other just plagiarizing outright. As I understand it “originality is not a highly prized attribute” in briefs and such.

I think you have complied with Rule 4.   I just included some OK case law for good measure

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Oh! haha! I clicked the link and looked at that case. I've seen it a few times before and thought I might have referenced it and you were catching the plagiarism or something. Awesome! Thanks for the help. I will add that in where appropriate. 

I've submitted ,y case to a consumer atty and he is emailing back and forth. He just asked for the Credit Agreement with the Arbitration clause after listening to the phone call recording I send to him. This has all happened today (a Saturday) so either he is just a hard worker or he likes what he sees or he is ruling my case out. Heh. We'll see. 

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Consumer atty picked up my case. He says that his procedure is to file for discovery. He has dealt with this law firm and Midland hundreds of times in the past. The process here, he says, is:

1. He answers for me (denies) then files for discovery.

2. They don't answer.

3. Time elapses and the plaintiff files for dismissal without prejudice

4. I call the credit bureaus and tell them its been dismissed.

5. Midland sends his office verification that it's been dropped off my credit. 

6. I never hear from them again.

Sound about right?

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