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Sued by PRA in Wisconsin for Synchrony CC


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3 minutes ago, Brotherskeeper said:

@sugarray Is this a Synchrony BP account? If so, does your agreement have this language?

"2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in
that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require
you to arbitrate."

Yes, that's exactly what it says.

 

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12 minutes ago, sugarray said:

Yes, that's exactly what it says.

(I am not a lawyer--IANAL) Many posters here on this forum in small claims court use this Synchrony arb clause to get out of court. Looks like arbitration will work for you. Your motion to compel and stay doesn't cite any Wisconsin statutes or cases. I gave you a recent Wisconsin Supreme Ct.case to click through to read. It has what you could use to plug in your specific state laws into your motion. Also, you need to make absolutely certain the arbitration section you quote in your motion is from the Synchrony BP agreement. I don't know about your state's rules of civil procedure, but most posters submitting this motion to compel also prepare an affidavit (notarized) to attach the Synchrony agreement to. It looks like you've cut off  the FAA text in paragraph 5 and the first paragraph of the AT&T Mobility v Concepcion block quotation in your motion at paragraph 6. 

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https://docs.legis.wisconsin.gov/statutes/statutes/788

788.01 Arbitration clauses in contracts enforceable. A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract. This chapter shall not apply to contracts between employers and employees, or between employers and associations of employees, except as provided in s. 111.10, nor to agreements to arbitrate disputes under s. 292.63 (6s) or 230.44 (4) (bm).

788.02 Stay of action to permit arbitration. If any suit or proceeding be brought upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

788.03 Court order to arbitrate; procedure. The party aggrieved by the alleged failure, neglect or refusal of another to perform under a written agreement for arbitration may petition any court of record having jurisdiction of the parties or of the property for an order directing that such arbitration proceed as provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made as provided by law for the service of a summons. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. If the making of the arbitration agreement or the failure, neglect or refusal to perform the same is in issue, the court shall proceed summarily to the trial thereof. If no jury trial is demanded, the court shall hear and determine such issue. Where such an issue is raised, either party may, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue to a jury summoned and selected under s. 756.06. If the jury finds that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury finds that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

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3 minutes ago, Brotherskeeper said:

(I am not a lawyer--IANAL) Many posters here on this forum in small claims court use this Synchrony arb clause to get out of court. Looks like arbitration will work for you. Your motion to compel and stay doesn't cite any Wisconsin statutes or cases. I gave you a recent Wisconsin Supreme Ct.case to click through to read. It has what you could use to plug in your specific state laws into your motion. Also, you need to make absolutely certain the arbitration section you quote in your motion is from the Synchrony BP agreement. I don't know about your state's rules of civil procedure, but most posters submitting this motion to compel also prepare an affidavit (notarized) to attach the Synchrony agreement to. It looks like you've cut off  the FAA text in paragraph 5 and the first paragraph of the AT&T Mobility v Concepcion block quotation in your motion at paragraph 6. 

I will update the Motion to Compel to include those you posted, thank you. I still have the original agreement that came with the card so I'm certain that section it's in there. I had to cut off the bottom and top of those images when I took a screen shot because it wouldn't fit, but they're complete. 

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7 minutes ago, Brotherskeeper said:

Wow! Thanks. Should I include those statutes on the motion also? I spoke with the clerk of courts and the way I understand it is that I can file the motion to compel and a sworn affidavit with the CC agreement at the same time I submit my answers but the judge won't do anything with them until a hearing. And first, since I'm contesting the lawsuit they schedule a conference call between all parties to try to come to a settlement. 

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6 minutes ago, sugarray said:

Wow! Thanks. Should I include those statutes on the motion also? I spoke with the clerk of courts and the way I understand it is that I can file the motion to compel and a sworn affidavit with the CC agreement at the same time I submit my answers but the judge won't do anything with them until a hearing. And first, since I'm contesting the lawsuit they schedule a conference call between all parties to try to come to a settlement. 

It wouldn't hurt to use them, and it might help.  So go ahead,

 

There was a little confusion earlier among some of the posters, I think.

The Synchronicity card allows for arbitration in Small Claims.  

The OTHER card does not, so for the OTHER account, make sure to file BEFORE they sue.   

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Make certain to use the correct language used to describe your agreement, (e.g.cardholder, cardmember, credit card, account.)  For Paragraph 3 consider adding:

3.  Defendant moves this Court to compel binding private arbitration based on the terms and conditions of the arbitration provision in the credit card agreement. A true and correct copy of the applicable Synchrony BP Agreement is attached to the Affidavit of (“sugarray”) filed and served herewith as Exhibit A, and incorporated herein by reference.

 

You need to look up your state's requirements for a valid affidavit. In your affidavit, you might say:

The attached agreement marked as Exhibit A is a true and correct copy of the applicable Synchrony BP account agreement that contains the arbitration provision which governs the dispute between the parties for this alleged account.

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3 minutes ago, BackFromTheDebt said:

There was a little confusion earlier among some of the posters, I think.

Yeah, I figured they saw the US Bank one and got confused.

 

8 minutes ago, BackFromTheDebt said:

It wouldn't hurt to use them, and it might help.  So go ahead,

I'll add them to it.

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1 minute ago, sugarray said:
10 minutes ago, Brotherskeeper said:

Make certain to use the correct language

Ok I'll keep looking. I was hoping there was a standard form I could just fill in the blanks but I haven't found one yet.

I meant whatever the title of your Synchrony BP agreement is called. It's usually found at the top of the first page. 

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14 minutes ago, Brotherskeeper said:

I meant whatever the title of your Synchrony BP agreement is called. It's usually found at the top of the first page. 

Ok I understand.  

The fill in blank form I was hoping to find was for a valid affidavit.

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This is what goes at the bottom of the Affidavit as verification upon oath or affirmation. You don't sign it until in the presence of the notary who gives you the oath and witnesses your signature.

 

STATE OF WISCONSIN

COUNTY OF _________________

Signed and sworn to (or affirmed) before me on ___________________________ (date) by ________________________________________________________ (name(s) of person(s) making statement).

______________________________

Notary Public

(Seal, if any) Title and Rank: _________________

Printed Name: _________________

My Commission Expires:

_____________________

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@sugarray After a quick search for Wisconsin affidavit rules I found this:

"802.08(3) 

(3) Supporting papers. Supporting and opposing affidavits shall be made on personal knowledge and shall set forth such evidentiary facts as would be admissible in evidence. Copies of all papers or parts thereof referred to in an affidavit shall be attached thereto and served therewith, if not already of record. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this section, an adverse party may not rest upon the mere allegations or denials of the pleadings but the adverse party's response, by affidavits or as otherwise provided in this section, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party."

(IANAL) Something like this should be close enough if you can't find a fill-in form:

<<Court Caption Header>>

AFFIDAVIT OF SUGARRAY

     Sugarray, being first duly sworn on oath, deposes and states as follows:

1. I am a resident of the State of Wisconsin, XXXXX County, and I am a competent person over 18 years of age. I have personal knowledge of the facts set forth in this affidavit and, if called upon, could and would testify as to these facts.

2. The attached agreement marked as Exhibit A is a true and correct copy of the applicable Synchrony BP account agreement that contains the arbitration provision which governs the disputes between the parties for this alleged account.

     FURTHER AFFIANT SAYETH NOT.

sugarray (signature)

sugarray

Notary info from post above here.

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On 4/9/2018 at 9:28 AM, Clydesmom said:

The problem with LaneBlane is they are not in consumer arbitration.  Commercial is VERY different and they are suddenly posting all over here giving advice on their limited knowledge based on one state.  Often it is wrong. 

The advise and information I've offered on this site is based on consumer arbitration and the consumer filing fee of $250.00.  I know commercial arbitration is different.  Why would I ever advise consumers on commercial arbitration?

Here's what I wrote in my post on this thread:  "I didn't see lack of jurisdiction as one of your affirmative defenses.  I've heard Synchrony has a very consumer-friendly arbitration agreement."

I made two statements in my post, both of which are true.  Did I tell the creator of the thread to do anything? No.   I actually didn't offer any advise at all.

 

 

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36 minutes ago, sugarray said:

Thanks!

Quick question, do I need to put the case # on the Motion To Compel or the Affidavit?

YES!  Put the case number on EVERYTHING.  

That is how they know what case it belongs to.  

You also need to find out what the rules are for motion hearings in small claims courts in your county.  

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47 minutes ago, sugarray said:

Quick question, do I need to put the case # on the Motion To Compel or the Affidavit?

Yes. You need to create a case header template, if you can, that goes at the top of your court filings. It must contain all of the information your court requires, including the case number.  If you don't have the ability to create the template, check for state-approved fill-in forms online that allow you to put your own info in.

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After digging myself out of 18 inches of snow I was able to finish and submit all the paperwork on time. I first took the affidavit for the card agreement to a notary and had 2 copies made. Then I went to the clerk of courts and submitted my answer form denying everything and included the Lack of Subject Matter Juristiction affirmative defense. I also gave them a notorized copy of the affidavit, Exhibit A and a copy of the credit card agreement. Finally I submitted MTC arbitration and an Order To Stay the case pending arbitration. The Clerk accepted the MTC and OTS but said they won't be filed until trial. She stamped Filed on the rest of them and also the copies for the Plaintiff which I sent out CRRR. Am I missing anything? The clerk said I'll be contacted in about a week for a phone conference. Can anyone tell me how those normally go, do they try to get you to settle, do they try to get you to admit to the debt, do they try to scare you and tell you if this goes to trial you'll have to pay the full amount plus Attorney fees etc.? 

Thanks Again Everyone I definately would'nt have been this far without you!

Edit: Do I need to take the reciept for the CRRR back to the clerk to show proof of service?

Edited by sugarray
Another question
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Wisconsin courts look favorably on arbitration agreements.

https://scholar.google.com/scholar_case?case=15493243470236499939&q=motion+to+compel+arbitration&hl=en&as_sdt=4,50

 14 There is a strong presumption of arbitrability where the contract in question contains an arbitration clause. See Kimberly, 222 Wis.2d at 39, 586 N.W.2d 41(citing AT & T Tech., 475 U.S. at 650, 106 S.Ct. 1415). Therefore, "[a]n 278*278 order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute." AT & T Tech., 475 U.S. at 650, 106 S.Ct. 1415 (citation omitted). Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. Id. Thus, when a court is called upon to ascertain the arbitrability of a dispute, the court's function is limited to a determination of whether: (1) there is a construction of the arbitration clause that would cover the grievance on its face and (2) whether any other provision of the contract specifically excludes it. See Joint School Dist. No. 10, 78 Wis.2d at 111, 253 N.W.2d 536; see also Kimberly, 222 Wis.2d at 38, 586 N.W.2d 41.

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12 hours ago, sugarray said:

Do I need to take the reciept for the CRRR back to the clerk to show proof of service?

Not if your filings included a certificate of service page where you certified that you served a copy to the Plaintiff.  But I would be sure to bring the receipt to court just in case they attempt to contest service to the judge.

On 4/11/2018 at 1:03 AM, LaneBlane said:

The advise and information I've offered on this site is based on consumer arbitration and the consumer filing fee of $250.00.  I know commercial arbitration is different.  Why would I ever advise consumers on commercial arbitration?

Here's what I wrote in my post on this thread:  "I didn't see lack of jurisdiction as one of your affirmative defenses.  I've heard Synchrony has a very consumer-friendly arbitration agreement."

I made two statements in my post, both of which are true.  Did I tell the creator of the thread to do anything? No.   I actually didn't offer any advise at all.

 

 

You were talking about having to split the filing fee and pay $600.  I was merely pointing out that your case is not under consumer rules and works very different as to not confuse the OP on what may be expected in their case.

On 4/11/2018 at 1:46 PM, Brotherskeeper said:

Yes. You need to create a case header template, if you can, that goes at the top of your court filings. It must contain all of the information your court requires, including the case number.  If you don't have the ability to create the template, check for state-approved fill-in forms online that allow you to put your own info in.

Thank you @Brotherskeeper for going above and beyond to help so many people on this board lately.  You are doing a ton of work to help everyone!

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