Mloske

Help needed ASAP!! Midland lawsuit Ohio

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@fisthardcheese Thank you for responding! Quick question.. regarding your post “Arbitration Overview and Strategy” (Thank you) Please correct me if I’m wrong.. first thing is file is my answer/ affirmative defenses along with my MTC Arbitration with the court, These  documents will take place of the “Objection” correct? Then do I just wait? Or start the Arbitration chain of events?   As I mentioned I have 2 lawsuits from midland  (filed 3wks apart) from the same law firm.. I am assuming it’s in my best interest to file both at the same time?! I just want this don’t and over!! But I can’t go down without a fight! 

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13 hours ago, Mloske said:
 

@fisthardcheese Thank you for responding! Quick question.. regarding your post “Arbitration Overview and Strategy” (Thank you) Please correct me if I’m wrong.. first thing is file is my answer/ affirmative defenses along with my MTC Arbitration with the court, These  documents will take place of the “Objection” correct? Then do I just wait? Or start the Arbitration chain of events?   As I mentioned I have 2 lawsuits from midland  (filed 3wks apart) from the same law firm.. I am assuming it’s in my best interest to file both at the same time?! I just want this don’t and over!! But I can’t go down without a fight! 

It is your decision if you want to object to the judge's ruling on your Motion for Definitive statement or not.  Once you wrap that up, then file the answer and MTC as @nobk4me suggests.

If possible, I would file for both cases at the same time to save multiple trips to the court, but you need to watch your time to answer. If they were filed 3 weeks apart, then one of them has an answer due much sooner than the other.

File the answer and MTC and then, yes, you wait for the other side to respond.  You need to carefully read your courts rules on filing motions to see how long they have to respond and if you need to set a hearing date when you file the motion or not.

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Listen to these guys, they have helped me tremendously! I cant tell you enough however to check, double check, and then triple check that you have everything in order. It has bitten me in the butt a few times. I seem to have an amazing guardian angel, so im lucky i was able to resolve them quickly without consequence.

As the others have posted Arb is your best bet, so get all your ducks in a row and look it all over with a fine tooth comb.

Answer with your affirmative defense -Lack of subject matter jurisdiction.

Motion to compel - Include case law from Ohio pointing out that an arb agreement is binding, and has been ruled by courts higher then your local municipal court. ( i.e. the supreme court )

In your motion be sure to attach a copy of the agreement that has the arb clause, this should be paired with an affidavit of authenticity that must be notarized ( Mine was done at my local bank )

Also be sure to include in this packet a judgment entry for the judge to either approve or deny the motion. (something i forgot to include)

Read up on local court rules as well as Ohio Rules of Civil Procedure, and be proactive in preparing / learning.

This process is long and frustrating, so be patient and let the wisdom of these fine gentlemen to guide you through to the end. In my thread (https://www.creditinfocenter.com/community/topic/329386-lvnv-funding-llc-v-me/ )I have gained alot of help from these guys if you can find anything useful there feel free. I urge you however not to just copy and past, make sure you understand what your doing before just playing monkey see monkey do.

Good luck friend, be patient and open minded, all the tools you need are here to succeed!

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4 hours ago, MikeB35 said:

 let the wisdom of these fine gentlemen

Fine gentlefolk, please. "I desire you would remember the ladies..." ~Abigail Adams, March 31, 1776, letter to John Adams

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1 hour ago, Brotherskeeper said:

Fine gentlefolk, please. "I desire you would remember the ladies..." ~Abigail Adams, March 31, 1776, letter to John Adams

Women can be fine gentlemen as well.  It is 2018.  :)

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Ok, I’ve been work on this diligently for the past 48 hrs!! Can someone please read through this and let me know if I need to change anything or if I am missing something! I appreciate everyone’s help!!! Thank you!! 

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It was pointed out to me that you may want to include state lvl case law backing your defense. For example  (Kelm v. Kelm (1993), 68 Ohio St.3d 26, 623 N.E.2d 39.) Google scholar is an amazing tool to help find case files.

 

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You asked for dismissal in both your answer and the prayer for relief in the MTC, but not in the header of the MTC.  If you are going to ask for dismissal (or alternatively a stay), then it should be listed that way in the header.

MTC paragraph 1 - Unless you want to be referred to as an "it" (it's 2018, after all, so I don't know), you may want to change that to a better pronoun or say "this Motion....".

Paragraph 3 - I never liked the way that is worded.  I would reword it to this: "The parties are abound by the Credit Cardholder Agreement*, which contains an arbitration clause.  The Arbitration Clause states, among other things, ...."

*Use what your actual card agreement is titled. It could be "terms of use" or Cardmember agreement", etc.

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I would suggest these changes to your MTC Arb:    
 

I would suggest replacing the text of the Law and Argument section with the following:

 

.

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.


Ohio Revised Code Section 2711.01(A) states that "A provision in any
written contract . . . to settle by arbitration a controversy that
subsequently arises out of the contract, or out of the refusal to perform
the whole or any part of the contract . . . shall be valid, irrevocable,
and enforceable, except upon grounds that exist at law or equity for the
revocation of any contract."

Ohio public policy favors the enforcement of private arbtitration
agreements. Kelm v. Kelm (1993), 68 Ohio St.3d 26, 623 N.E.2d 39.
See also, N. Ohio Sewer Contrs., Inc. v. Bradley Dev. Co. (2005), 159
Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650; Junkins v. Spinnaker
Bay Condominium a$$'n., Ottawa App. No. OT-01-007, 2002-Ohio-872. Any
uncertainty that exists with regard to the applicability of an arbitration
clause should be resolved in favor of coverage. Id. An arbitration clause
should not be denied effect unless it can be determined to a high degree of
certainty that the clause does not cover the asserted dispute. Owens
Flooring Co. v. Hummel Constr. Co. (2000), 140 Ohio App.3d 825, 749 N.E.2d 782.
See also Willis v. Linnen, Summit App. No. 20775, 2002-Ohio-2000. The law favors
and encourages arbitration. Brennan v. Brennan (1955), 164 Ohio St. 29, 128
N.E.2d 89.
 
Request for a Stay Pending Arbitration

The Defendant asks that this case be stayed pending arbitration. Ohio
Revised Code Section 2711.02(B) states: "If any action is brought upon
any issue referable to arbitration under an agreement in writing for
arbitration, the court in which the action is pending, upon being satisfied
that the issue involved in the action is referable to arbitration under an
agreement in writing for arbitration, shall on application of one of the
parties stay the trial of the action until the arbitration of the issue has been
had in accordance with the agreement . . ." (Emphasis added.)

 

­­­­­­­­­­­­­­­­­­­­­_________________________________________

 

 


 The reason for my suggestion re the MTC Arb is:

(1) to make sure the Supreme Court citation is there.  It's always good to let the court know how the highest court in the land regards arbitration.

(2) to get Ohio law cited there too, so the court knows what state-level policy is.

(3) to cite the Revised Code language regarding a stay. The court needs to know that state law mandates a stay.  There is really no discretion there.  Which is why I italicized shall.

 

And, your proposed order is totally off.  What you want the court to do is STAY the case pending private, contractual arbitration.  Period.  That's it.  The whole point of the MTC Arb is to bring the court case to a screeching halt.  You don't need the court to order YOU to initiate in JAMS.  If you want arb in JAMS, what's stopping you from filing a claim yourself, right now?  Why do you need the court to order you to do that?  (Not trying to be harsh, just playing the devil's advocate.)   And, if any party is to be ordered to file in JAMS, it's the plaintiff.   There is Ohio case law to that effect:  Capital One v. Rotman:  https://www.supremecourt.ohio.gov/rod/docs/pdf/8/2012/2012-ohio-480.pdf

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And, in your answer, in the final, Wherefore clause, you mention a Credit One agreement.  I thought your OC was Comenity.

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1 hour ago, nobk4me said:

And, in your answer, in the final, Wherefore clause, you mention a Credit One agreement.  I thought your OC was Comenity.

Its possible she copied my sheets and forgot to update that section. However i should point out that those documents were rough drafts only and the finalized versions are much different. The copy and past thing is ok so long as like i stated before to the OP you understand what your doing, and use it for more of a stream lined format.

All i can say to the OP is relax a little, I understand the pressure and the stress you feel right now with looming deadlines and dates. Breath, step back, and look things over, I made COUNTLESS mistakes because i was in a rush freaking out because i have never done anything like this before. Even the day of my status conference i was a nervous wreck. Looking back now its all smoke and mirrors, a fear factor if you will.

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I’m so sorry for my ignorance.. I assure I am trying to figure this out and I appreciate everyone’s patience with him and advice! I’m a nurse .. this is far out of scope of practice! On top of freakin out about this lawsuit and meeting the deadline.. we just had a litter of 15 Daniff puppies on the 2nd and we have to bottle feed half of them! My time is researching law inside a whelping pen! Did I mention I’m back in school ?!?  I will take the suggestions above and fix my documents. Do I need to also send a letter to attorney about the arbitration? 

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11 minutes ago, Mloske said:

Do I need to also send a letter to attorney about the arbitration? 

Whatever you submit to the clerk should also be sent certified mail to the attorney representing the plaintiff. When you send mail certified your ensuring the receipt of the mail ( so they cant say "well I didnt get it")

Whatever documents you submit make copies. When I filed mine i had four packets of each.  1- to file, 1- to send to the attorney, 1 for personal records, 1 for that (you never know moment) Ask the clerk to please stamp each packet.

A word from experience, make sure you sign and date everything that day prior to going to the court house. I felt dumb submitting 4 packets and she had to keep handing them back for me to sign and date.

18 minutes ago, Mloske said:

I’m a nurse .. this is far out of scope of practice!

Believe me i know that feeling. Im a quality control manager in my shop. This has been a whirlwind for me as well, but i assure you it is so self gratifying walking out of court knowing you did your absolute best. What better feeling then knowing you wont just roll over, you will fight tooth and nail to the very end.

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Ok, highlighted the areas I fixed as suggested. Can someone please look at this and let me know of any other errors? I HAVE to file this by tomorrow!! My answer and MTC satisfies the Objection needed  per Magistrates decision I received correct?  Midland2017.docx

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Ive prepared a word document for you to fill out. (I am not a lawyer) This is what i have pieced together from advice i have received. This is only to help with formatting and correcting what you have. You will have to fill in the blanks. Hope it helps!

Blank Packet.docx

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16 hours ago, Mloske said:

Do I need to also send a letter to attorney about the arbitration? 

Are you referring to a letter to plaintiff via its attorney notifying them you are exercising your contractual right to demand arbitration to hear disputes? Since you've already filed the motion to stay the case and compel arbitration, plaintiff will receive notice of your arb demand. Some defendants send a demand notice letter prior to filing an answer and MTC in courts that require parties to seek concurrence on a motion before using the court's time, or to show the judge the party's intent to follow through. In those cases, defendants submit the demand letter as an exhibit to their MTC demonstrating plaintiff has rejected moving to arb and must be compelled to do so.

 

8 hours ago, Mloske said:

My answer and MTC satisfies the Objection needed  per Magistrates decision I received correct? 

IANAL. No. Your objection to the Magistrate's decision is a separate issue. Your request that plaintiff provide a more definite statement of its complaint was denied because the facts and the law did not support your argument. An objection to this decision would need to point out errors in that decision by the deadline. You claimed you could not answer the complaint until plaintiff provided more documentation. You are now filing an answer and a MTC, so it would appear you are able to submit a response to their complaint. 

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@Brotherskeeper that was my question  at the start I haven’t filed anything since I got the decision from judge.. I assumed I would get a chance to answer and when it stated  “the other party must file an objection “  I confused as to what do I file? Will they accept my answer and MTC without an objection or do I need to throw one in? 

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12 hours ago, Mloske said:

Ok, highlighted the areas I fixed as suggested. Can someone please look at this and let me know of any other errors? I HAVE to file this by tomorrow!! My answer and MTC satisfies the Objection needed  per Magistrates decision I received correct?  Midland2017.docx

Looks good.  Much better than before.

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1 hour ago, Mloske said:

@Brotherskeeper that was my quest at the start I haven’t filed anything since I got the decision from judge.. I assumed I would get a chance to answer and when it stated  “the other party must file an objection “  I confused as to what do I file? Will they accept my answer and MTC without an objection or do I need to throw one in? 

Filing objections is voluntary.  You only file objections if you disagree with the magistrate's decision and want to contest it.

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