CandyCLC

Here We Go Again, PRA this time

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@CandyCLC

Make certain you take action according to Michigan's rules of civil procedure. Under the rules of responsive pleading, no general denial is allowed. Your first thread has all the info. 

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1 minute ago, Brotherskeeper said:

@CandyCLC

Make certain you take action according to Michigan's rules of civil procedure. Under the rules of responsive pleading, no general denial is allowed. Your first thread has all the info. 

I totally plan to. Especially with that case not too long ago on here where they guys MTC was denied because he didn’t answer correctly and didn’t admit to the debt. If I’m invoking the arbitration clause in the contract of the account I’m being sued on, isn’t that admitting the debt anyway? 

I’ll post the answer before I file.

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Interestingly enough the judge was about to order discovery and said witness lists etc must be made available by such time but that’s when she stopped completely and changed everything because she took the time to read the contract.

Also interesting, in the hallway lawyer chat, aside from the normal “it’s expensive to arbitrate” crap, when I told him I’ve done my research and would like to move forward, he asked for 60 days in order for me to file. I didn’t bring up the clause in the agreement that states that they are the ones that have to initiate it. I saved that tidbit for court.  After the judge read that to him, twice, he completely changed his response to something like “If that’s the case your honor, we’re going to take this time until the motion hearing to decide if we’re going to go forward or try to come to a resolution “. I can’t remember every word but I swear he said something about having my answer and a response of some sort.

I’m just going to work on my answer, that’s all I need to do right now. My motion and the contract pretty much contain all the information needed to argue for the motion to be granted, I just want to be prepared for some language twisting and possible curve balls with PRA lately using Accounts Stated can’t be arbitrated. And any other things they claim that aren’t necessarily true. 

This isn’t the same judge I had last time, this judge I know for sure does more criminal cases than consumer, which could explain why she knows nothing about arbitration. When she was asking about discovery I basically told her that it was my understanding that discovery would happen in arbitration. That’s when she re-read the contract and ordered a court date for the motion. She was ready to get discovery and witnesses until she read that fine print that said the magic word “must” . That’s also when the lawyer started paper fumbling, even more when she told him that his client has to initiate the Arb. 

I gave the lawyer permission to email me regarding the case. I don’t want to get ahead of myself or get my hopes up but I’m telling you, I was a bundle of nerves when she started talking about discovery but everything changed when she took the time to read that contract again and pointed out things to the lawyer that were not in his favor. So my heart pounded for a minute but a sigh of relief washed over soon after. It’s not over yet but it’s a good start.

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18 minutes ago, CandyCLC said:

I can’t remember every word but I swear he said something about having my answer and a response of some sort.

I’m just going to work on my answer, that’s all I need to do right now.

Did the judge order you to submit an answer? 

 

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38 minutes ago, CandyCLC said:

f I’m invoking the arbitration clause in the contract of the account I’m being sued on, isn’t that admitting the debt anyway? 

No, not at all.  I would deny everything in my answer.  Just because you once had a credit card which makes the card agreement and arbitration clause valid, does not mean that you owe any money at all on that account today.  They are two completely separate issues.   Unless the complaint says "On XX date, Defendant opened a credit card with OC Bank" and that date is correct, I might admit to this line ONLY.  But I would definitely deny any money owed at this point until they prove that in arbitration.

11 minutes ago, CandyCLC said:

I was a bundle of nerves when she started talking about discovery but everything changed when she took the time to read that contract again and pointed out things to the lawyer that were not in his favor. So my heart pounded for a minute but a sigh of relief washed over soon after. It’s not over yet but it’s a good start.

You did a good job!  Just remember, when you are in court, first thing is that arbitration is an absolute right according to the Supreme Court of the United States.  Unless your local judge is suddenly appointed King, he does not have the authority to over turn a SCOTUS case law.  Any ruling to the contrary is ripe for an appeal.  In other words, you should be confident in the fact that you are ENTITLED to arbitration and anything else should be immediately appealed. So don't be nervous.

If this were me, I would file the answer as suggested by others and then wait to see if the JDB files an opposition to your MTC prior to the hearing (I would expect them to).  If they email you, try to remember that you are now coming from a position of power so do not let THEM dictate the manor of a settlement.  They are the ones who will want to avoid arbitration at all costs, so I would let them know that at this point the only way to avoid is by a dismissal with prejudice in exchange for my agreement not to pursue arbitration (mutual release).  If they don't like that or don't agree, I would be happy to let the judge grant my MTC (who basically already said the contract says he is required to grant it).

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19 minutes ago, CandyCLC said:

“If that’s the case your honor, we’re going to ... decide if we’re going to go forward... “.

Take out the excess verbiage and this sounds like he just needs to update PRA and they will dismiss.

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5 hours ago, CandyCLC said:

you mean also denying the debt?

Deny that you owe PRA. You can say you don't have sufficient knowledge and information to admit to the underlying debt. That leaves the door open for them to still prove it. (I.e. they can't use the argument that there is no agreement between the parties, etc. because the agreement itself says it is for an arbitrator, and not a court, to decide the existence of an agreement between the parties.)

5 hours ago, CandyCLC said:

And for the affirmative defense, is this where I’m to mention the pending motion to compel hearing?

Yes. Create a section of the answer titled Affirmative Defenses and state that the court lacks subject matter jurisdiction because the claims are subject to private contractual arbitration per the card agreement. 

 

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5 hours ago, fisthardcheese said:

No, not at all.  I would deny everything in my answer.  Just because you once had a credit card which makes the card agreement and arbitration clause valid, does not mean that you owe any money at all on that account today.  They are two completely separate issues.   Unless the complaint says "On XX date, Defendant opened a credit card with OC Bank" and that date is correct, I might admit to this line ONLY.  But I would definitely deny any money owed at this point until they prove that in arbitration.

We're forgetting a particular issue.  PRA claims they own the account.  As a result, PRA is subject to the arbitration provision.  It doesn't matter if @CandyCLChad an account with the original creditor or not.

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14 hours ago, BV80 said:

We're forgetting a particular issue.  PRA claims they own the account.  As a result, PRA is subject to the arbitration provision.  It doesn't matter if @CandyCLChad an account with the original creditor or not.

Ah, yes. Even better!!

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On 9/10/2018 at 3:35 PM, BV80 said:

We're forgetting a particular issue.  PRA claims they own the account.  As a result, PRA is subject to the arbitration provision.  It doesn't matter if @CandyCLChad an account with the original creditor or not.

The Arbitration Provision in my case says claims relating to the agreement, transactions that are part of the agreement, and the validity/enforceability of the arbitration clause or the agreement itself must be arbitrated. 

Even though one of my arguments was that the agreement the JDB produced wasn't signed, filing an MTC admitted nothing because such a dispute had to be arbitrated.

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On 9/10/2018 at 11:34 AM, Brotherskeeper said:

Did the judge order you to submit an answer? 

 

Yes.

One thing I don’t like about this court is that I rarely walk out of there with papers in hand. She told me to answer but of course this was before she figured out that she needed to look at that contract a little closer. And she didn’t even dismiss us really she set the date and then turn d her attention to the tv screen to address an inmate in jail. Strange.

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On 9/20/2018 at 12:06 PM, CandyCLC said:

Update!

PRA Lawyer just emailed...

Dismissal WITH prejudice. 

Perfect!!  Great job!!

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