Mloske

Help needed ASAP!! Midland lawsuit Ohio

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Please explain this rule in layman terms for me!

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18 minutes ago, upcycleliving said:

So how would Mloske go about getting a hearing? So I guess nobody even reads these motions until you bang down their door demanding a hearing?

I don't know about your state, but in my state there's a form with a box that says "Motion Hearing Requested".  Then it advises that one must fill out certain sections on that form. 

@Brotherskeeperposted the following:

Motions will not be set for hearing except as the Court, in its discretion, orders. A party desiring a hearing shall request the same on the face of the motion. When a motion is set for hearing, the Court shall notify the parties to the action of the date and time of the hearing

That means, in your motion, you had to request a hearing.  I assume you did not do so?  If it were me, I'd call the clerk of court and ask what I need to do schedule a hearing on the motions to compel arbitration.

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6 minutes ago, upcycleliving said:

So how would Mloske go about getting a hearing? 

A party desiring a hearing shall request the same on the face of the motion.  If she wanted a hearing, she needed to request one in her motion to compel. The court may, in its discretion, set a hearing and notify the parties. IANAL. If she believes a hearing is necessary, she should ask the court clerk if she could supplement her motion request to add the hearing request. If allowed, she would have to send a copy to the plaintiff of course.

8 minutes ago, upcycleliving said:

So I guess nobody even reads these motions until you bang down their door demanding a hearing?

Motions will not be set for hearing except as the Court, in its discretion, orders. . . . When a motion is set for hearing, the Court shall notify the parties to the action of the date and time of the hearing

Parties shall have ten (10) calendar days to respond to a motion, however, this does not prevent the court from ruling on a motion at any time.

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33 minutes ago, Mloske said:

Yes.. I filed a MTC for both suits.. I haven’t received anything regarding the decision on my motion.

According to the Stow Muni court rules (if those are the correct rules for your case),  "Parties shall have ten (10) calendar days to respond to a motion, however, this does not prevent the court from ruling on a motion at any time." Your judge may want to wait for at least 10 days after your mtc filing date to see if your plaintiff files any opposition to your motion and whether any opposition arguments are persuasive. 

40 minutes ago, Mloske said:

I was under the impression that this court can’t hear this case because of my Arbitration clause?

You've filed a motion (a motion is a request) with the court to determine that the threshold issues are met and to stay this case and order the parties into arbitration. 

46 minutes ago, Mloske said:

Do I now have to file discovery and summary judgment?

No. Discovery and summary judgment indicate that you mean to waive your right to arbitration and remain in court.  You need to either inquire how you would go about requesting a hearing on your motion to compel, or wait until the plaintiff files an opposition to the MTC, and/or the court rules on your motion. 

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I don't understand why they ruled on her motion for a more definitive statement but didn't rule on this one. Maybe it's because the judge is pro creditor and knows that this ruling will f*ck up their case so he's hoping that the case will just go on like nothing ever happened...

Fist said in his arbitration strategy that until the judge grants the MTC the JDB attorneys will work as if no MTC has ever been filed.

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12 minutes ago, upcycleliving said:
I don't understand why they ruled on her motion for a more definitive statement but didn't rule on this one. Maybe it's because the judge is pro creditor and knows that this ruling will f*ck up their case so he's hoping that the case will just go on like nothing ever happened...

Fist said in his arbitration strategy that until the judge grants the MTC the JDB attorneys will work as if no MTC has ever been filed.

I don't know.  Perhaps it was denied because a hearing was not scheduled?

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7 minutes ago, BV80 said:

I don't know.  Perhaps it was denied because a hearing was not scheduled?

I would think if it was denied the judge would issue an order and the defendant would have the oppurtunity to appeal.

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29 minutes ago, upcycleliving said:

I would think if it was denied the judge would issue an order and the defendant would have the oppurtunity to appeal.

That's possible, but the appeal might not be possible until a final judgment is issued.   I don't know that it's subject to an interlocutory appeal.

It would also depend upon one's court rulings.   A "more definitive statement" can be left up to the discretion of the judge.  If the plaintiff has provided enough information to advise the defendant of the claims against him, the motion and appeal will be denied.

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1 hour ago, upcycleliving said:

I don't understand why they ruled on her motion for a more definitive statement but didn't rule on this one. Maybe it's because the judge is pro creditor and knows that this ruling will f*ck up their case so he's hoping that the case will just go on like nothing ever happened...

It appears as thought first motion was filed around 2/11 and the MTC around 2/20.

I wouldn't go down the rabbit hole of thinking the judge is "pro creditor," when any perceived "bias" could be due to being "pro law and order." Every so often we see a judge appear to be "less than partial" with arbitration. It strikes me as safe to assume that plaintiffs, in these matters, would make an effort to "educate" judges that using arbitration in these cases is nothing but exploiting a "loop hole" in order to skip out on a debt. Maybe the judge just had a perp skate on a technicality in a criminal case and is "just in the mood" to play hardball.

Not to get off on a tangent, but some statutes and arbitration rules mention exceptions for "frivolous" claims. If I was representing plaintiff in these cases that would be at the top of my list when arguing against MTC. I don't think we've ever seen a denied MTC get upheld on appeal, but we have seen folks just give up rather than appeal a bad ruling.

In other words - the judge may deny, or ignore, this particular MTC, but it doesn't mean it's because he's on Midland's payroll.

 

 

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2 hours ago, Mloske said:

Yes.. I filed a MTC for both suits.. I haven’t received anything regarding the decision on my motion.. I can attach the count stamped motion I turned in if that would help.. I was under the impression that this court can’t hear this case because of my Arbitration clause?? Maybe I’m wrong? Do I now have to file discovery and summary judgment?

No, you don't want to participate in litigation, as that would waive your arbitration rights.  If the plaintiff sends discovery requests to you, you need to object to them.

I would wait a little while, to see if the plaintiff responds to your motion, and to see what the court will do.  If the court hasn't ruled in a week, then I would contact the clerk and see what is going on.  Maybe you need to ask for a motion hearing.

Note that it is possible the court will ignore your MTC.  They shouldn't, but that sometimes happens.  Here is case law to cite which holds that courts have to rule on the motion:  Capital One v. Collins:  https://law.justia.com/cases/ohio/twelfth-district-court-of-appeals/2011/ca2011-05-090.html

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1 hour ago, upcycleliving said:

I don't understand why they ruled on her motion for a more definitive statement but didn't rule on this one

If the court rules I posted are correct, an opposing party has 10 calendar days to file a response to a motion e-filed on 2/21. Courts these days are very busy. Her first motion for a more definitive statement was not well taken by the magistrate and then the judge.  IMO I doubt her judge would rule on her MTC without waiting to see if the plaintiff files an opposition.

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34 minutes ago, Goody_Ouchless said:

It appears as thought first motion was filed around 2/11 and the MTC around 2/20.

I wouldn't go down the rabbit hole of thinking the judge is "pro creditor," when any perceived "bias" could be due to being "pro law and order." Every so often we see a judge appear to be "less than partial" with arbitration. It strikes me as safe to assume that plaintiffs, in these matters, would make an effort to "educate" judges that using arbitration in these cases is nothing but exploiting a "loop hole" in order to skip out on a debt. Maybe the judge just had a perp skate on a technicality in a criminal case and is "just in the mood" to play hardball.

Not to get off on a tangent, but some statutes and arbitration rules mention exceptions for "frivolous" claims. If I was representing plaintiff in these cases that would be at the top of my list when arguing against MTC. I don't think we've ever seen a denied MTC get upheld on appeal, but we have seen folks just give up rather than appeal a bad ruling.

In other words - the judge may deny, or ignore, this particular MTC, but it doesn't mean it's because he's on Midland's payroll.

 

 

This is not a loophole. If the contract says that the case must be arbitrated then it must be arbitrated. The law is very clear on this. Right now there is an epidemic where consumers are waiving their rights to have their day in court in front of a jury of their peers because of these arbitration agreements in almost every contract.

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28 minutes ago, upcycleliving said:

This is not a loophole. If the contract says that the case must be arbitrated then it must be arbitrated. The law is very clear on this. Right now there is an epidemic where consumers are waiving their rights to have their day in court in front of a jury of their peers because of these arbitration agreements in almost every contract.

You're preaching to the choir.  We know this, so what do you mean?

On this site, we haven't seen an "epidemic" of consumers waiving their right to arbitration.

The "loophole" referred to by  has nothing to do with what you've suggested.

To what are you referring in regard to an "epidemic"?

 

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Watch the documentary hot coffee and you will understand. One of the reasons OC’s are more likely to use arbitration than junk debt buyers is because the big companies (like credit card companies) generally have a long term contract with the arbitration companies and they work out some form of rate that is decent. If it was unfair to the credit card company they’d go somewhere else.

 

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2 minutes ago, upcycleliving said:

Watch the documentary hot coffee and you will understand. One of the reasons OC’s are more likely to use arbitration than junk debt buyers is because the big companies (like credit card companies) generally have a long term contract with the arbitration companies and they work out some form of rate that is decent. If it was unfair to the credit card company they’d go somewhere else.

 

The OP has been sued by MIDLAND, not an OC.

We rarely, if ever, recommend arbitration with an OC. 

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"This is not a loophole. If the contract says that the case must be arbitrated then it must be arbitrated. The law is very clear on this. Right now there is an epidemic where consumers are waiving their rights to have their day in court in front of a jury of their peers because of these arbitration agreements in almost every contract."

Upcycle, I think you're probably referring to situations where a home buyer can't sue a builder because of  an arbitration clause or  a car buyer can't can't sue a dealer because of an arbitration clause.  And yes, consumer lawyers often can't file FDCPA class action lawsuits because of an arb clause.  But in your case, you will try to use arbitration against them to make it too costly for them to pursue their claim against you.

 

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27 minutes ago, upcycleliving said:

This is not a loophole.

I never said it was. I'm talking about the effect of "spin" on perception.

Consider: We know, for a fact, that posts from sites like this have been presented to judges, juries and legislators. Say you are a Creditor's Rights "advocate" and can point to statutes, case law, contracts and rules where the word "frivolous" is used. Is it really beyond reason to think that the two could ever be presented as "one?"

If I was an advocate for the collections industry, I would make sure that a professionally produced brochure, juxtaposing quotes from people using arbitration to escape legitimate debts with snippets of law concerning "frivolous" actions, was made available to the local judiciary.

Not a big deal - simply something to be prepared to counter if and when it comes up.

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10 minutes ago, Goody_Ouchless said:

I never said it was. I'm talking about the effect of "spin" on perception.

Consider: We know, for a fact, that posts from sites like this have been presented to judges, juries and legislators. Say you are a Creditor's Rights "advocate" and can point to statutes, case law, contracts and rules where the word "frivolous" is used. Is it really beyond reason to think that the two could ever be presented as "one?"

If I was an advocate for the collections industry, I would make sure that a professionally produced brochure, juxtaposing quotes from people using arbitration to escape legitimate debts with snippets of law concerning "frivolous" actions, was made available to the local judiciary.

Not a big deal - simply something to be prepared to counter if and when it comes up.

 

The law firm that suing me. I’ve gone through the last 3 years of cases and I haven’t found a single case where a plaintiff has filed a motion to compel. This tells me that arbitration isn’t even a blip on the radar to these guys. I wouldn’t be surprised an arbitration motion comes up less than one out of every 5,000 cases so I doubt this is even an issue to them. 

Furthermore it should not matter what people on a message board say. One of the most common legal strategies is for one side to drag a case out for as long as possible until the other side is broke and forced to settle or drop the lawsuit. You could easily spend well into the six figures litigating a lawsuit. If all you had to say was “the other side is just trying to bury me in legal bills” to win a lawsuit there wouldn’t be very many lawsuits.

A contract is a contract. A deal is a deal. If the contract says “If you or we decide to arbitrate you and me must arbitrate” then 99% of the judges are going to enforce that clause. That’s not coming from me that’s coming from Steve Lehto who is a consumer rights lawyer that does a legal podcast who I have been taking to. He tells me he tries to stay out of arbitration but if the contract has an arbitration clause he loses that battle 99% of the time.

 

 

 

 

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1 minute ago, upcycleliving said:

The law firm that suing me. I’ve gone through the last 3 years of cases and I haven’t found a single case where a plaintiff has filed a motion to compel. This tells me that arbitration isn’t even a blip on the radar to these guys. I wouldn’t be surprised an arbitration motion comes up less than one out of every 5,000 cases so I doubt this is even an issue to them. 

Most consumers don't know anything about arbitration which is why they don't file a MTC.

 

9 minutes ago, upcycleliving said:

A contract is a contract. A deal is a deal. If the contract says “If you or we decide to arbitrate you and me must arbitrate” then 99% of the judges are going to enforce that clause. That’s not coming from me that’s coming from Steve Lehto who is a consumer rights lawyer that does a legal podcast who I have been taking to. He tells me he tries to stay out of arbitration but if the contract has an arbitration clause he loses that battle 99% of the time.

 

Again, you're preaching to the very people who condone and encourage arbitration.

So what's your point?

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The point I'm making is if the amount of people that file for arbitration is 0.002% or 0.001% then there's no need for JDB's to "make a professionally produced brochure, juxtaposing quotes from people using arbitration to escape legitimate debts with snippets of law concerning "frivolous" actions, was made available to the local judiciary."  Debt buyers buy debt very cheaply. They aren't worried about the miniscule needle in a haystack amount of people that file MTC's to move cases to arbitration.

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30 minutes ago, upcycleliving said:

The point I'm making is if the amount of people that file for arbitration is 0.002% or 0.001% then there's no need for JDB's to "make a professionally produced brochure, juxtaposing quotes from people using arbitration to escape legitimate debts with snippets of law concerning "frivolous" actions, was made available to the local judiciary."  Debt buyers buy debt very cheaply. They aren't worried about the miniscule needle in a haystack amount of people that file MTC's to move cases to arbitration.

I don't know what I'm missing here.  Most of the time, arbitration works for consumers who are sued by JDBs and file a MTC arbitration.  Except in rare cases, JDBs don't want to arbitrate.

Your reference to Steve Lehto has no meaning because he's trying to stay out of arbitration.  That's not the case for defendants sued by JDBs.

@Goody_Ouchless

 

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29 minutes ago, BV80 said:

I don't know what I'm missing here.  Most of the time, arbitration works for consumers who are sued by JDBs and file a MTC arbitration.  Except in rare cases, JDBs don't want to arbitrate.

Your reference to Steve Lehto has no meaning because he's trying to stay out of arbitration.  That's not the case for defendants sued by JDBs.

@Goody_Ouchless

 


I'm not disagreeing with you but at the same time I also don't think that the debt buyer law firms sit around at the National Creditor Bar Association meetings complaining about the arbitration clause that are in card member agreements because it's such a rare occurrence that a defendant actually tries to enforce it. The JDB's and JDB lawyers are not suing because they are trying to "right a wrong", they are suing because they are trying to make money period. Defendants filing a Motion to Compel happens so infrequently that I doubt it's going to cause the JDB lawyers to lose one penny of their end of the year Christmas bonuses. It reminds me of people that want to crack down on voter fraud.  You are trying to fix a problem that really doesn't exist. 

The reason I used Steve Lehto is that he's a trial lawyer.  He tries cases for a living and he says that if there's an arbitration clause, the judge will enforce it 99% of the time. That's good if you are hoping to get your case moved to arbitration. 

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1 hour ago, upcycleliving said:

The point I'm making is if the amount of people that file for arbitration is 0.002% or 0.001% then there's no need for JDB's to "make a professionally produced brochure, juxtaposing quotes from people using arbitration to escape legitimate debts with snippets of law concerning "frivolous" actions, was made available to the local judiciary."  Debt buyers buy debt very cheaply. They aren't worried about the miniscule needle in a haystack amount of people that file MTC's to move cases to arbitration.

I think you are having trouble with context. The OP is preparing for a hearing, or hearings, where her MTC will most likely be addressed. If the plaintiff challenges the election of arbitration, then we are talking about 100% of this case, not some small percentage of all cases filed.

I don't have exact numbers, but it appears that the vast majority of members who move to compel arbitration face some kind of push-back. What I (and others) try to do is provide a list of known objections to arbitration and the best available counter measures. Again, for the 100% of cases where arbitration is contested.

True, I don't recall a specific case where "frivolity" was specifically argued (although I believe certain OC's have come close during arbitration), but it strikes me as something to be prepared for. We have a current case in TX where Midland has paid initial JAMS fees - I would argue that this is solely due to the arbitration strategy being used more often, hence, appearing on someone's RADAR.

 

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1 hour ago, Goody_Ouchless said:

True, I don't recall a specific case where "frivolity" was specifically argued (although I believe certain OC's have come close during arbitration), but it strikes me as something to be prepared for.

Good point. Always check your state's arbitration law. I know in my state, "the court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established. (MCL 691.1687(4)).

https://www.jacksonlewis.com/sites/default/files/docs/Compelling and Staying Arbitration in Ohio.pdf

Threshold Issues for the Court to Decide

When deciding an application to compel or enjoin arbitration, the court cannot rule on the merits of the claims underlying the arbitration (see Academy of Medicine v. Aetna Health, Inc., 842 N.E.2d 488, 492 (Ohio 2006)). The court instead plays a gatekeeping role that is limited to determining issues of substantive arbitrability, such as whether:

  •  The agreement is enforceable (see Valid Arbitration Agreement).
  • The agreement covers the parties’ dispute (see Scope of Arbitration Agreement). (R.C. 2711.01, 2711.02, and 2711.03; see Benjamin v. Pippoly, 800 N.E.2d 50, 57 (Ohio App. 10th Dist. 2003); Substantive Arbitrability.)
1 hour ago, Goody_Ouchless said:

I would argue that this is solely due to the arbitration strategy being used more often, hence, appearing on someone's RADAR.

On this forum we're seeing posters prevailing on motions to compel more often than not. We've seen attorneys go from attempting to scare pro ses in the hallway with false representations of the costs of arbitration, followed by weak (even whining) oral arguments during MTC hearings, to filing respectably researched opposition memoranda in some recent cases. I agree with Goody that JDB plaintiffs and their law firms are noticing and stepping up their arguments--at least anecdotally on this forum. It's always wise to be prepared with facts, law, on-point case citations and court rules.  It may also be critical to your success not to waive the right to arbitrate by failing to assert it when required under court rules, failing to amend answer to include it if required, giving a sworn denial of ever entering into the OC cc contract, not transferring out of small claims court if arb clause has small claims exception, engaging in too much litigation, etc. Know your rules of civil procedure. 

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I don't get what all the hullabaloo is about.  OP filed an MTC just about 10 days ago.  The other side is allowed 10 days to respond.  I would wait to see if OP gets an opposition from the Plaintiff  in the mail this week (or finds it on the court's website).  I would wait to see if the judge issues an order on the MTC in the next couple weeks.  If no ruling is made on the MTC prior to the next court date, then I would show up to court and at the first chance to speak I would respectfully remind the judge that there is a pending MTC that speaks to jurisdiction and believe it should be heard first before getting into the particulars of the case.

If a hearing is not required by the rules, I'm not sure why OP should even ask for one.  Especially if the MTC is so far unopposed, I see no reason to force a hearing on it.  Just wait for the judge to rule on the MTC as unopposed.  The desire to rush to have an MTC granted and forcing a hearing on what would otherwise be an unopposed motion seems to be an act of shooting yourself in the foot for no reason. Maybe just take the holster off and relax in the saloon for a minute before you jump to trying to take out the outlaws who haven't even arrived yet.

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