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Here is the thing --

Judges are generally overworked.

Suppose a judge wants to sign an order.  His/Her Honor has two choices:  write up an order, or sign an order prepared by one of the parties ahead of time, ready for the judge's signature. 

To save work the judge will sign the prepared order, even if the wording of the order isn't exactly what the judge would write.  

So, if you have a prepared order, it does two things:

1. It saves the judge some time, which makes the judge happy.

2.  It has EXACTLY the wording you want, rather than the wording the judge is going to come up with at 3 AM.  

 

This order is now an official court document, so it has to be written up as an official court document.  If you have a proposed order that is in the wrong form, it isn't really what the judge is looking for.  

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On 3/26/2018 at 11:12 AM, Brotherskeeper said:

If you send the proposed order to plaintiff's attorney, include this language in your motion:

The attorney for the Plaintiff has been contacted for concurrence with this motion and  does agree to the proposed order;  does not agree with the proposed order; or did not respond. (include only the one that applies, delete others; if agrees, must include written agreement/signed proposed order from plaintiff marked as Exhibit C attached to defendant’s affidavit stating it’s a true and correct copy.)

This is where my confusion lies, the proposed order is for the judge, why would I send it to the Plaintiff attorney before I file the MTC, unless I am required to of course, and in that case I will have to go back and reread this thread again. I know I am filing a copy of the the proposed order with the MTC and they will get it then, but it would be blank if I send it now. In my request for motion hearing form I am using the election notice letter I sent as stating I had communication. Is that not good enough?

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18 minutes ago, BackFromTheDebt said:

Here is the thing --

Judges are generally overworked.

Suppose a judge wants to sign an order.  His/Her Honor has two choices:  write up an order, or sign an order prepared by one of the parties ahead of time, ready for the judge's signature. 

To save work the judge will sign the prepared order, even if the wording of the order isn't exactly what the judge would write.  

So, if you have a prepared order, it does two things:

1. It saves the judge some time, which makes the judge happy.

2.  It has EXACTLY the wording you want, rather than the wording the judge is going to come up with at 3 AM.  

 

This order is now an official court document, so it has to be written up as an official court document.  If you have a proposed order that is in the wrong form, it isn't really what the judge is looking for.  

Correct, I understand that part completely, and I will have extra copies on me for the court date just in case, my question is, why would I send a copy to the attorney before I file? Perhaps I am misunderstanding some Michigan court rules that have been posted, but especially with reference to writing my MTC in Lieu, as I posted above in reply to BK. I am just still confused if/why I have to send a blank proposed order to the lawyer.

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1 hour ago, CandyCLC said:

My question is this... what would they possibly do to it, since it wouldn't be signed by the judge or anything yet, it would be blank if I sent one today. Honestly it looks like a form I would have signed at my pre-trial hearing, and it makes sense for that, I just am not sure why it had to be mailed to the Plaintiff, keeping in mind that I did send them a letter that I elect/intend to take this to arbitration already.

The letter is a courtesy and not required by the court.  The copy of the filing IS required by the court.  ANYTHING you file in your case they opposing party is required to be notified of and get a copy.  Now in some states you only have to file it with the court and the court sends a copy to the other side.  Many states now require the moving party to do it themselves and swear to the court they served the notice on their opponent.  Texas is one of those states that you must include a certificate of service with anything filed in a case.

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I had actually planned to send the copy of the motion in the mail on the way to the court to file the motion so that I could sign service certification on the bottom of my MTC while the clerk watches. Should I be waiting until after it's filed to mail off the copies? I wouldn't have the green return receipt before I file with the court or anything but I would have the USPS receipt with the numbers on it. I would feel better if I waited because the copies I send would actually be filed with the court if/when they decided to call up and ask if anything was filed.

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1 hour ago, CandyCLC said:

I had actually planned to send the copy of the motion in the mail on the way to the court to file the motion so that I could sign service certification on the bottom of my MTC while the clerk watches. Should I be waiting until after it's filed to mail off the copies? I wouldn't have the green return receipt before I file with the court or anything but I would have the USPS receipt with the numbers on it. I would feel better if I waited because the copies I send would actually be filed with the court if/when they decided to call up and ask if anything was filed.

You have to follow the rules for the court.  You cannot make it up as you go along based on what you think you should or want to do.

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22 minutes ago, Clydesmom said:

You have to follow the rules for the court.  You cannot make it up as you go along based on what you think you should or want to do.

That is my biggest plan, if I could find them. I asked the clerks office via email where I could find them, and she told me to contact a lawyer. I hope I get a different person when I go to file, as that info was just plain not helpful from her. I literally asked if there was a link posted that listed our specific court rules and she told me to talk to an attorney. I didn't ask anything that needed legal advice, just where I could find the rules. I didn't tell her my case number or anything just a quick hey, are there court rules posted online.

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1 hour ago, CandyCLC said:

That is my biggest plan, if I could find them. I asked the clerks office via email where I could find them, and she told me to contact a lawyer. I hope I get a different person when I go to file, as that info was just plain not helpful from her. I literally asked if there was a link posted that listed our specific court rules and she told me to talk to an attorney. I didn't ask anything that needed legal advice, just where I could find the rules. I didn't tell her my case number or anything just a quick hey, are there court rules posted online.

You need to understand:  what you did was ask for advice.  Even if it was not specific to your case facts.  ALL the clerk is allowed to do is take your forms and stamp them as received and collect the filing fee(s).  PERIOD.  

If you are going to defend yourself pro-se you have a LOT of work to do.  Essentially you have to learn to be a lawyer VERY fast.  You cannot expect the clerks and strangers on the internet to handle the case for you.  If you are in over your head hire a lawyer.  

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On 3/24/2018 at 9:51 AM, Brotherskeeper said:

Michigan court rules and local court may prefer/require a proposed order be sent to be accepted or rejected prior to scheduling the hearing for the MTC. If a proposed order is stipulated to by the plaintiff, no hearing is necessary--unless the judge determines otherwise.

The proposed order looks like a court document because it is. It is not a letter. It is the judge's official ruling and so ordered. The proposed order exemplar I posted in this thread is one another poster sent. It was based on the motion the poster submitted. (It was ignored, then submitted with the motion papers for the judge.) It has a place for plaintiff's attorney to check boxes and sign. If it is signed, it means they stipulate to the order as marked, or can offer their amendments. The judge gets it, crosses out the word "proposed" and fills in where necessary and signs it. 

You don't have to send a proposed order. You can call the attorney and try to get him/her to stipulate to the mtc and waive the hearing. See what the response is.. I thought it might make you too nervous to engage with the attorney, but if not, call. 

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2 hours ago, CandyCLC said:

there court rules posted online.

Your court may not have local rules. Your judge may have a few preferences that are written down when you receive the scheduling order for the case. The Michigan Rules of Civil Procedure are what you must follow. http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/Michigan Court Rules.pdf

A SCAO order fill-in form looks like this:   http://courts.mi.gov/Administration/SCAO/Forms/courtforms/mc327.pdf

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1 hour ago, Brotherskeeper said:

Your court may not have local rules. Your judge may have a few preferences that are written down when you receive the scheduling order for the case. The Michigan Rules of Civil Procedure are what you must follow. http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/Documents/Michigan Court Rules.pdf

A SCAO order fill-in form looks like this:   http://courts.mi.gov/Administration/SCAO/Forms/courtforms/mc327.pdf

The Michigan Civil Procedure is where I have been spending the most time reading, because those MUST be followed regardless of the court. And for the forms I have the SCAO form to request a hearing all printed and ready to go for the packet. If the clerk says it isn't needed, which has happened in some MI cases I have seen here, then at least I have it just in case. Better to be over-prepared than under prepared.

1 hour ago, Brotherskeeper said:

The proposed order looks like a court document because it is. It is not a letter. It is the judge's official ruling and so ordered. The proposed order exemplar I posted in this thread is one another poster sent. It was based on the motion the poster submitted. (It was ignored, then submitted with the motion papers for the judge.) It has a place for plaintiff's attorney to check boxes and sign. If it is signed, it means they stipulate to the order as marked, or can offer their amendments. The judge gets it, crosses out the word "proposed" and fills in where necessary and signs it. 

You don't have to send a proposed order. You can call the attorney and try to get him/her to stipulate to the mtc and waive the hearing. See what the response is.. I thought it might make you too nervous to engage with the attorney, but if not, call. 

I am not completely opposed to mailing it, but is this something that I can send through fax?

1 hour ago, Clydesmom said:

You need to understand:  what you did was ask for advice.  Even if it was not specific to your case facts.  ALL the clerk is allowed to do is take your forms and stamp them as received and collect the filing fee(s).  PERIOD.  

If you are going to defend yourself pro-se you have a LOT of work to do.  Essentially you have to learn to be a lawyer VERY fast.  You cannot expect the clerks and strangers on the internet to handle the case for you.  If you are in over your head hire a lawyer.  

I don't expect anyone to do the work for me, I simply wanted to learn the rules myself for my court. If I had money for a lawyer, I wouldn't be on here at all. I have put in a lot of work and I am not even close to done with this case. I DO take advice from other members in Michigan who have gone through this before. As it stands I am the only person on this site so far that is filing a MTC in lieu of an answer, and if I am granted, someone new will learn from my experience. The deck is stacked against me going Pro Se not because of having to learn the laws, but not knowing what the local court rules are. It's not going to stop me though, they are somewhere and I am going to find them before I file, ONLY to double check that my hard work was done right.

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It hasn't been 7 days since I sent the letter and they just got it Monday so the return receipt should arrive later today. I have the proposed order ready to be mailed, I am mailing it and should have a response to it in time should they choose not to stipulate and I am forced to file the request for hearing. I want to walk into that courthouse with more than I need just in case.

As for the MTC, it is ready to go except for inserting my cited case law for choosing to elect Arb in lieu of answer and I hope to have that finished and ready to post the draft here. I am trying to be proactive and file with the thought that they won't be doing me any favors by responding in a timely manner as to whether they agree with the proposed order or not. I have 9.5 days to file, I would like to file it no later few days before the deadline so I am looking at about a week to make sure the MTC is absolutely ready.

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Okay folks, I am unsure where to put the cite for the case law that BK graciously posted on several threads, so here is my most current draft with the case law temporarily placed in the #8 of the motion, and I obviously have to re-word that so it fits, but I wanted opinions on if it is the correct placement in the motion.

Other than that, I would love opinions on it thus far....

-------------------------------------------------------------------------------------

STATE OF MICHIGAN

IN THE XXX DISTRICT COURT, XXXXX COUNTY

  

 

LVNV FUNDING, LLC

 

          Plaintiff

 

VS.                                                                                                       Case No: XX-XXXXXX

CANDYCLC

 

            Defendant

 

 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION, IN LIEU OF AN ANSWER

 

      NOW COMES , CandyCLC, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Credit One Bank , N.A. Cardholder Agreement, (" the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority.  Pursuant to MCR 2.108(A)(1) and MCR 2.111(F)(2), Defendant in pro se is filing this Motion in lieu of filing an Answer and states the following:

 

1.   On or about March 16, 2018, Plaintiff filed its Complaint against Defendant referencing a former account with “Credit One Bank, N.A,” however Plaintiff failed to include a copy of Cardholder  Agreement with Complaint.  DEFENDANT has located a copy of said agreement and attached it as Exhibit “A" a copy of the purported Cardholder Agreement (hereto referenced as “Agreement”).

2. The "Agreement" states "Either you or we may, without the other's consent, require that any controversy or dispute between you and us (all of which are called “Claims”) be submitted to mandatory, binding arbitration. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and to the extent of the State law is applicable, the State Law governing the card agreement. " (Page 9 Paragraph 5 Exhibit A)

3. The "Agreement" states which Claims are covered in the Arbitration Agreement: "Not only ours and yours, but also claims made by or against anyone connected with you or claiming through you, such as co-applicant or authorized user of your account, agent, representative or heirs,  or a trustee in bankruptcy. Similarly, Claims subject to arbitration include not only Claims that relate directly to us, a parent company, affiliated company, and any predecessors and successors (and employees, officers, and directors of all of these entities". (Page 6 Paragraph 5) Exhibit A

 

4. The “Agreement” states What time frame applies to Claims subject to arbitration? "Claims arising in the past, present, or future" (Page 6 Paragraph 5) Exhibit A

 

5.  Additionally, the agreement states that “The party filing arbitration must choose an administrator, which can be either the American Arbitration Association  (“AAA”), www.adr.org, (800) 778-7879, or JAMS, www.jamsadr.org. (800) 352-5267 (Page 7 Paragraph 1) Exhibit A

 

 

 6The "Agreement" states "You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if such claims are part of a law suit." (Page 7 Paragraph 5) Exhibit A

 

7. The FAA and the USC have determined that there is an absolute right to arbitration, if a contract contains a clause allowing for private contractual arbitration in lieu of litigation.

 

 

8. [D]efendants are entitled to file their motion to dismiss in lieu of filing an answer to plaintiffs' complaint pursuant to MCR 2.108(A)(1), MCR 2.108(B), and MCR 2.108(C)(1). See Huntington Nat'l Bank v Ristich, 292 Mich App 376, 387-388; 808 NW2d 511 (2011); DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 494-496; 591 NW2d 364 (1998).

 

9.  The DEFENDANT has therefore officially elected for private arbitration with JAMS, and has sent notification to the last known address of Council for PLAINTIFF, as well as in the Court documents, here attached as Exhibit “B”.  All claims of the Plaintiff, therefore, as delineated in the “Agreement” are subject to arbitration. 

 

     Pursuant to 9 U.S.C. § 1, et. seq., DEFENDANT moves this court for judicial relief to enforce the arbitration provision contained in the “Agreement”.

    Pursuant to MCR 3.602©, DEFENDANT moves this Court for a stay of these proceedings pending the outcome of its motion, and pursuant to , DEFENDANT moves this Court for a stay of these proceedings pending the outcome of the arbitration proceeding.

   WHEREFORE, DEFENDANT respectfully moves this honorable Court for (i) an Order compelling PLAINTIFF to arbitrate, according to terms set forth in the “Agreement”, their claims set forth in their Complaint, (ii) an Order staying these proceedings pending the Court’s resolution of the motion, and (iii) an Order staying these proceedings pending the outcome of the private arbitration proceedings.

 

 

                                                                                                Respectfully submitted,

 

_____________                                                                      _________________________

Dated                                                                                      CandyCLC, Pro Se

 

 

 

 

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this Motion to Dismiss, or in the Alternative, Stay Case and Compel Arbitration In Lieu of Answer on the plaintiffs or their attorneys by certified first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3). 

__________________Date ___________________________________Signed

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10 hours ago, CandyCLC said:

I am not completely opposed to mailing it, but is this something that I can send through fax?

Yes, you were told earlier that you could use the attorney fax number on the complaint to send things quickly. If I were you, if sent by fax I'd also send the proposed order by regular first class mail as an insurance policy. If you call the attorney, you may get permission to send documents via his/her email address. 

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I faxed and mailed a copy of the order, how does the MTC look? I changed the #8 and removed it and placed it below the other pursuant to MCR items listed, but everything else is the same.

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On 3/26/2018 at 10:12 AM, CandyCLC said:

ROUGH DRAFT AFFIDAVIT ----- printed, this is a 3 page document so far with everything double spaced.

-------------------------------------------------------------------------------

STATE OF MICHIGAN

IN THE XXth DISTRICT COURT

AFFIDAVIT OF CANDYCLC

Case No: XX-XXXX

 

 

 

     NOW COMES Defendant in Pro Se, CandyCLC, whose residence is XXXXXXXX, MI XXXXX certifies and says:

1. I am a resident of the State of Michigan, Eaton County, and I am a competent person over 18 years of age.  This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify to the facts in this affidavit.

2.  On March 16, 2018, I was personally served at my residence with a copy of the Summons and Complaint in the above-captioned matter.

3.  A true and correct copy of the 2016 Credit One Bank Cardholder Agreement that governs the alleged account at issue that was submitted to the Consumer Financial Protection Bureau by Credit One Bank, N.A., as required by Regulation Z, 12 CFR § 1026.58(c) and the Truth in Lending Act, 15 USC § 1632(d), is attached as Exhibit A. .For the convenience of this Court, I have highlighted the section of the agreement that contains the Arbitration Clause, found on pages 6-7. 

4. Written notice of Arbitration election mailed to the Plaintiff by certified mail and received on DATE, copy of stated letter with signed return receipt is attached as Exhibit B.

5. Proposed Court Order is attached as Exhibit C.

6. Request For Hearing On A Motion is attached as Exhibit D.

7.  I elect to exercise my contractual right to have the disputes of this account and the disputed amount of $563.01 to be resolved by a JAMS arbitrator rather than in this Court. 

I certify under penalty of perjury that the foregoing statements are true and correct.

 

Dated: April x, 2018                                                                              _________________________

CandyCLC

 

STATE OF MICHIGAN

COUNTY OF XXXXXX

Signed and sworn to (or affirmed) before me on:_____________________

My commission expires on:___________

(seal)                                                                                                                                            _________________(Notary's signature)

                                                                                                                                                    Notary Public

 

This is not an affidavit that I would use. It serves no purpose. There are not any facts you are stating to support your case.

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4 hours ago, bmc100 said:

This is not an affidavit that I would use. It serves no purpose. There are not any facts you are stating to support your case.

I'm not sure I understand, because my motion to compel is in lieu of answer and the affidavit is my sworn testimony that the copy of the card agreement and the letter, my edited version doesn't list the normal court documents as exhibits C and D.

I am not asking you to help me write or anything but what would you suggest in my case? I thought (there I go again) if I start referring to allegations in the affidavit, that it would fall into the answer territory. I could be completely wrong and I probably am.

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On 3/30/2018 at 12:12 PM, CandyCLC said:

I'm not sure I understand, because my motion to compel is in lieu of answer and the affidavit is my sworn testimony that the copy of the card agreement and the letter, my edited version doesn't list the normal court documents as exhibits C and D.

@CandyCLCYour motion to compel is actually a motion for summary disposition under MCR 2.116(C)(7)(dismissal or other relief due to an agreement to arbitrate in a different forum that bars the claim.) You are requesting the court to dismiss or stay the case so that it can be heard in the arbitral forum. In your case, you are bringing this motion in lieu of filing an answer, which is allowed under MCR 2.108(A)(1) and MCR 2.111(F)(2).

RULE 2.119 MOTION PRACTICE (B) Form of Affidavits.
(1) If an affidavit is filed in support of or in opposition to a motion, it must:
(a) be made on personal knowledge;
(b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and
(c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.
(2) Sworn or certified copies of all papers or parts of papers referred to in an affidavit must be attached to the affidavit...

 

A defendant who files a motion for summary disposition under MCR 2.116(C)(7) may (but is not required to) file supportive material such as affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3); Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). If such documentation is submitted, the court must consider it. MCR 2.116(G)(5).

 

The contract containing the arbitration clause was not attached to the Complaint, using the "in the possession of the defendant" as the reason. Therefore, it is not a part of the record before the court.  IANAL In order to have the arbitration clause enforced, the contract must be introduced by Candy. If the contract is sworn to and attached as an exhibit to a rule-compliant affidavit filed in support of the motion for summary disposition, the court must consider it. 

 

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On 3/28/2018 at 2:35 AM, CandyCLC said:

1.   On or about March 16, 2018, Plaintiff filed its Complaint against Defendant referencing a former account with “Credit One Bank, N.A,” however Plaintiff failed to include a copy of Cardholder  Agreement with Complaint.

Read carefully and compare these 2 statements. What information is contained in #2 that is not included in your #1?

1. On March 16, 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Credit One Bank, N.A., and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits. 

Your posted drafts of the motion and the affidavit need some work. It is confusing when you post uncorrected drafts and tell us some things have been changed or deleted. 

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I will edit #1 as you posted above in the MTC but aside from that, it's the most up to date and edited version of the MTC. I will post the most recent Affidavit below this post.

 

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AFFIDAVIT DRAFT

--------------------------------------------

STATE OF MICHIGAN

IN THE XXX DISTRICT COURT, XXXXX COUNTY

AFFIDAVIT OF CANDYCLC

Case No: XX-XXXXXX

 

     NOW COMES Defendant in Pro Se, CandyCLC, whose residence is Awesomeville, MI XXXXX certifies and says:

1. I am a resident of the State of Michigan, XXXXX County, and I am a competent person over 18 years of age.  This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify to the facts in this affidavit.

2.  On March 16, 2018, I was personally served at my residence with a copy of the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Credit One Bank, N.A., and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits.

3.  A true and correct copy of the 2016 Credit One Bank Cardholder Agreement that governs the alleged account at issue that was submitted to the Consumer Financial Protection Bureau by Credit One Bank, N.A., as required by Regulation Z, 12 CFR § 1026.58(c) and the Truth in Lending Act, 15 USC § 1632(d), is attached as Exhibit A. .For the convenience of this Court, I have highlighted the section of the agreement that contains the Arbitration Clause, found on pages 6-7. 

4. Written notice of Arbitration election was mailed to the Plaintiff by certified mail and was received on DATE, copy of stated letter with signed return receipt is attached as Exhibit B.

5.  I elect to exercise my contractual right to have the disputes of this account and the disputed amount of $563.01 to be resolved by a JAMS arbitrator rather than in this Court. 

I certify under penalty of perjury that the foregoing statements are true and correct.

 

Dated: April x, 2018                                                                              _________________________

CandyCLC

 

STATE OF MICHIGAN

COUNTY OF XXXXX

Signed and sworn to (or affirmed) before me on:_____________________

My commission expires on:___________

(seal)                                                                                                                                            _________________(Notary's signature)

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5 minutes ago, CandyCLC said:

I will edit #1 as you posted above in the MTC but aside from that, it's the most up to date and edited version of the MTC. I will post the most recent Affidavit below this post.

 

Candy, it's very important you understand why you are stating something, what purpose it serves, or what fact it is introducing. If you introduce a fact to support your motion, you need to cite a place in the record of that fact. 

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1 minute ago, Brotherskeeper said:

Candy, it's very important you undeerstand why you are stating something, what purpose it serves, or what fact it is introducing. If you introduce a fact to support your motion, you need to cite a place in the record of that fact. 

This makes total sense, it takes more than just handing them an agreement,  they need to know WHY it's there. it's going to take more than me saying "I got served but I am choosing to request arb", they need to see the proof of why I claim that I am entitled to it and clear reference to it.

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And now the edited and most recent draft of the MTC. My two questions on this, are 1. Do I need to state the websites of the arbitration companies and 2. Is the "time frame" section something that needs to stay or does it seem redundant or out of place? I just wanted to hit the important parts of the agreement that I feel will help my motion...

-----------------------------------------------------------------------

STATE OF MICHIGAN

IN THE XXX DISTRICT COURT, XXXXX COUNTY

  

 

LVNV FUNDING, LLC

 

          Plaintiff

 

VS                                                                                                       Case No: XX-XXXXXX

CANDYCLC

 

            Defendant

 

 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION, IN LIEU OF AN ANSWER

 

      NOW COMES , CandyCLC, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Credit One Bank , N.A. Cardholder Agreement, (" the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority.  Pursuant to MCR 2.108(A)(1) and MCR 2.111(F)(2), Defendant in pro se is filing this Motion in lieu of filing an Answer and states the following:

 

1.   On March 16, 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Credit One Bank, N.A., and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits.  DEFENDANT has located a copy of said agreement and attached it as Exhibit “A" a copy of the purported Cardholder Agreement (hereto referenced as “Agreement”).

2. The "Agreement" states "Either you or we may, without the other's consent, require that any controversy or dispute between you and us (all of which are called “Claims”) be submitted to mandatory, binding arbitration. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and to the extent of the State law is applicable, the State Law governing the card agreement. " (Page 9 Paragraph 5 Exhibit A)

3. The "Agreement" states which Claims are covered in the Arbitration Agreement: "Not only ours and yours, but also claims made by or against anyone connected with you or claiming through you, such as co-applicant or authorized user of your account, agent, representative or heirs,  or a trustee in bankruptcy. Similarly, Claims subject to arbitration include not only Claims that relate directly to us, a parent company, affiliated company, and any predecessors and successors (and employees, officers, and directors of all of these entities". (Page 6 Paragraph 5) Exhibit A

 

4. The “Agreement” states What time frame applies to Claims subject to arbitration? "Claims arising in the past, present, or future" (Page 6 Paragraph 5) Exhibit A

 

5.  Additionally, the agreement states that “The party filing arbitration must choose an administrator, which can be either the American Arbitration Association  (“AAA”), www.adr.org, (800) 778-7879, or JAMS, www.jamsadr.org. (800) 352-5267 (Page 7 Paragraph 1) Exhibit A

 

 

 6The "Agreement" states "You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if such claims are part of a law suit." (Page 7 Paragraph 5) Exhibit A

 

7. The FAA and the USC have determined that there is an absolute right to arbitration, if a contract contains a clause allowing for private contractual arbitration in lieu of litigation.

 

 

8.  The DEFENDANT has therefore officially elected for private arbitration with JAMS, and has sent notification to the last known address of Council for PLAINTIFF, as well as in the Court documents, here attached as Exhibit “B”.  All claims of the Plaintiff, therefore, as delineated in the “Agreement” are subject to arbitration. 

 

   Pursuant to MCR 2.108(A)(1), MCR 2.108(B), and MCR 2.108(C)(1) [D]efendants are entitled to file their motion to dismiss in lieu of filing an answer to plaintiffs' complaint. See Huntington Nat'l Bank v Ristich, 292 Mich App 376, 387-388; 808 NW2d 511 (2011); DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 494-496; 591 NW2d 364 (1998).

    Pursuant to 9 U.S.C. § 1, et. seq., DEFENDANT moves this court for judicial relief to enforce the arbitration provision contained in the “Agreement”.

    Pursuant to MCR 3.602©, DEFENDANT moves this Court for a stay of these proceedings pending the outcome of its motion, and pursuant to , DEFENDANT moves this Court for a stay of these proceedings pending the outcome of the arbitration proceeding.

   WHEREFORE, DEFENDANT respectfully moves this honorable Court for (i) an Order compelling PLAINTIFF to arbitrate, according to terms set forth in the “Agreement”, their claims set forth in their Complaint, (ii) an Order staying these proceedings pending the Court’s resolution of the motion, and (iii) an Order staying these proceedings pending the outcome of the private arbitration proceedings.

 

 

                                                                                                Respectfully submitted,

 

_____________                                                                      _________________________

Dated                                                                                      CandyCLC, Pro Se

 

 

 

 

CERTIFICATE OF SERVICE

I certify that on this date I served a copy of this Motion to Dismiss, or in the Alternative, Stay Case and Compel Arbitration In Lieu of Answer on the plaintiffs or their attorneys by certified first-class mail addressed to their last-known address(es) as defined in MCR 2.107©(3). 

__________________Date ___________________________________Signed

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1 hour ago, CandyCLC said:

they need to see the proof of why I claim that I am entitled to it and clear reference to it.

No copy of the Credit One Bank NA agreement was attached to the Complaint. All allegations in a Complaint, signed by an attorney, are regarded by the judge as true unless denied or controverted by other evidence in an answer or motion. An affidavit submitted with a motion is sworn testimony. Any document attached to the affidavit has to be described (sworn) in the affidavit as " a true and correct copy attached as Exhibit X." This is how you get the contract into the record before the court so the judge can weigh it as admissible evidence. In order for Plaintiff to rebut or refute your copy of the agreement, they'd have to find a copy of the agreement and submit it with an affidavit from someone who has personal knowledge that theirs is the correct copy. 

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