MTC Arbitration Hearing Advice

[Sange]

Here is some background information.  Was served with lawsuit papers in person in March, 2018 by Portfolio Recovery Associates. Filed answer within 20 days stating lack information and denial. Received discovery paperwork. Did some research, decided to go arbitration route. Responded to discovery questions with objection court lacks jurisdiction and MTC is pending. Filed amended answer with defense of arbitration and lack of jurisdiction and filed MTC arbitration. Filed paperwork with JAMS and cc'd Portfolio Recovery and lawyer. MTC hearing date is August 20th. Anyone have advice on what to expect at hearing and any information I should have for this hearing?

[Brotherskeeper]

@Sange Here's some state specific info:

Compelling and Staying Arbitration in Kentucky

Did you read Fisthardcheese's pinned thread on arbitration?

 

[Sange]

Thank you for the state specific information. Yes, I have read the pinned thread on arbitration and have followed the suggestions. Does anyone know if there is a good chance that this MTC will be granted? Should I bring any documentation to the hearing? Thank you very much for the assistance.

[Sange]

Hi,

Have a MTC Arbitration hearing on August 20th. I have a copy of Synchrony Agreement from 2016. Have filed with JAMS, received Return Receipt from USPS today. Have sent copy of JAMS filing to Portfolio Recovery and lawyer. Have a copy of JAMS filing for court hearing. Is there anything else I should bring to the hearing? Any specific cases I should cite? This is a case in Kentucky. Also, is it most likely that the lawyer for Portfolio Recovery will show up for this hearing? What is the chance that the judge will grant the MTC? Any help with this would be greatly appreciated.

[Brotherskeeper]

19 hours ago, Sange said:

Also, is it most likely that the lawyer for Portfolio Recovery will show up for this hearing? What is the chance that the judge will grant the MTC? Any help with this would be greatly appreciated.

Have you received an opposition response to your motion from PRA? Under your court rules, what is the deadline for them to submit a response? Be aware that JDB attorneys sometimes submit a motion response to the court by the deadline while the defendant's copy mysteriously is slow to arrive by mail. If you know the deadline, you can check with your court to see what's been submitted.

I am not a lawyer. If your motion was properly drafted and submitted, and if PRA does not oppose it, your judge will likely grant it. 

[Sange]

I just called the court today and was told that no response to the motion was filed. I am not sure what the deadline is for them to file a response. I will call again tomorrow and find out. I have not received any correspondence from PRA or lawyers since they sent discovery paperwork a couple of months ago. Hoping this motion will be granted and they will agree to dismiss the case with prejudice. 

[Sange]

Any help on where I can find my local court rules on how much time they have to respond to a MTC?

[Sange]

I have a question related to another thread. Should you file with JAMS before your MTC is granted? There seems to be some conflicting information about this. Seems that I have read somewhere that it shows good cause to file with JAMS before your receive the MTC. I can not remember exactly where I saw this because I have read a lot of information about arbitration. Should you wait to file with JAMS until you get your MTC granted?

[Sange]

Went to hearing on August 20th. Due to stupid error on my part, as well as being misinformed by the clerk at the court, I had to reschedule the hearing for a later date. Now scheduled for September 21st.

Today I received correspondence from JAMS. They are ready to proceed with arbitration when they receive full filing fees. I have requested that PRA pay all fees including consumer fees as per the agreement. JAMS has not heard from counsel representing PRA. 

Being that the MTC for arbitration has not yet been granted, will they not respond in regard to the filing fees?

Let's say they do not respond and the deadline for submitting fees passes. Will JAMS reopen the case once the MTC is granted? Or will it have to be resubmitted all over again?

What is the chance that PRA will agree to dismiss case at this point?

Any input regarding this would be greatly appreciated.

 

 

 

[Goody_Ouchless]

Only two things happen, at this point. PRA dismisses (or does nothing until Court dismisses case) or Judge violates law (out of ignorance or collusion,) at which point you either appeal or accept being steamrolled.

You are in an "anti-consumer" State, so odds of something "not in your favor" may be higher than normal.

 

[fisthardcheese]

Now that you have a proper hearing date set, does PRA get a second chance to file a response according to your court rules?  You need to find the rule regarding time to respond to motions and have it ready to cite at the court hearing.  If the PRA attorney objects to arbitration in ANY way, I would state that they failed to file their opposition and raise their objections prior to the time allowed by Court rule X (Cite the rule) and ask the judge to grant your MTC as an unopposed motion.  Now, with that said, I would also prepare for the judge to ignore all of that and allow PRA's arguments against arbitration to be heard.  I would simply prepare some bullet points in your notes to refer to if they bring up any of the most common tactics, which could be:

1. You have the wrong card agreement

2. Arbitration doesn't apply to small claims

3. You waived arbitration by answering the complaint

4. Arbitration costs too much

None of these are valid arguments against the Synchrony card agreement.  I would make notes on refuting each of those claims as well as cites for the supreme court and any of your state case law on arbitration.

Don't worry about JAMS.  They will send a few notices to pay and I highly doubt any final notice to close the file would be send prior to the Sept hearing date.  If they do, though, all you have to do is respond by email to let them know you have a pending MTC in court and ask that they not close the file and give you XX days to get the court order to arbitrate this case.  I would expect PRA to continue to ignore JAMS until there is a granted MTC.

[Sange]

Hi, 

Thank you very much for the response. 

Quote

On 8/22/2018 at 5:19 AM, fisthardcheese said:

Now that you have a proper hearing date set, does PRA get a second chance to file a response according to your court rules?  You need to find the rule regarding time to respond to motions and have it ready to cite at the court hearing.  If the PRA attorney objects to arbitration in ANY way, I would state that they failed to file their opposition and raise their objections prior to the time allowed by Court rule X (Cite the rule) and ask the judge to grant your MTC as an unopposed motion.  Now, with that said, I would also prepare for the judge to ignore all of that and allow PRA's arguments against arbitration to be heard.  I would simply prepare some bullet points in your notes to refer to if they bring up any of the most common tactics, which could be:

*1. You have the wrong card agreement - I filed an affidavit, notarized. Would that be sufficient for this? State that unless they have a witness from the OC, that this is the correct agreement?

*2. Arbitration doesn't apply to small claims - This was filed in District Civil Court and I am pretty sure it is not considered small claims.

*3. You waived arbitration by answering the complaint - I filed an amended answer stating that the court does not have jurisdiction, that I will be using arbitration. Good?

*4. Arbitration costs too much - The agreement says nothing about costs, just that they will pay all fees.

None of these are valid arguments against the Synchrony card agreement.  I would make notes on refuting each of those claims as well as cites for the supreme court and any of your state case law on arbitration.

Don't worry about JAMS.  They will send a few notices to pay and I highly doubt any final notice to close the file would be send prior to the Sept hearing date.  If they do, though, all you have to do is respond by email to let them know you have a pending MTC in court and ask that they not close the file and give you XX days to get the court order to arbitrate this case.  I would expect PRA to continue to ignore JAMS until there is a granted MTC.

I can not find any specific copies of rules for deadline for them to file a response to the MTC in this court. I found some general information about motions, but anything as far as a deadline was only specified under criminal court, not civil. Any advice on where I can find specific information for this? It is Warren County, KY District Civil Court. Also, I spoke with someone on the phone from that section of the court who said to me they have up until the day of the hearing to respond but I have not found any information online indicating that. I can not find any information about if they can have a second chance to respond to this. What happened is I was told by clerk when I scheduled the hearing that they would notify the attorney for opposition. So, I did not notify the opposition of the hearing date, which was my stupid mistake. Judge rescheduled hearing and said notify them of hearing.

 

[Clydesmom]

12 hours ago, Sange said:

I can not find any specific copies of rules for deadline for them to file a response to the MTC in this court.

They are not required to file a response and not all courts set a fixed deadline to respond to motions.  Stop worrying about what they haven't done.  By not responding to the motion with an opposition they are only strengthening your position.

[Sange]

10 hours ago, Clydesmom said:

They are not required to file a response and not all courts set a fixed deadline to respond to motions.  Stop worrying about what they haven't done.  By not responding to the motion with an opposition they are only strengthening your position.

I understand that. However, I was responding to this:

Now that you have a proper hearing date set, does PRA get a second chance to file a response according to your court rules?  You need to find the rule regarding time to respond to motions and have it ready to cite at the court hearing.  If the PRA attorney objects to arbitration in ANY way, I would state that they failed to file their opposition and raise theirobjections prior to the time allowedby Court rule X (Cite the rule) and ask the judge to grant your MTC as an unopposed motion.

[Sange]

Have MTC hearing this Friday. Looking for some help and advice on how to respond to attorney arguing the following points:

1. You have the wrong card agreement

2. Arbitration does not apply to small claims

3. You waived arbitration by answering complaint

4. Arbitration costs too much

5. Saying it is account stated

6. That PRA is not the original creditor and does not have to follow the agreement

Any additional arguments they might use and how I can respond.

Any specific documentation or case law that I should print out and bring with me?

Any response would be greatly appreciated. Thanks.

[BackFromTheDebt]

1 hour ago, Sange said:

Have MTC hearing this Friday. Looking for some help and advice on how to respond to attorney arguing the following points:

1. You have the wrong card agreement

Did you send in a notarized statement that this is the correct agreement?

2. Arbitration does not apply to small claims

This could be their strongest argument.  IF the agreement has a small claims exemption, you will probably lose this battle.  

1 hour ago, Sange said:

3. You waived arbitration by answering complaint

In some states this is correct.  In others, it is not.  I don't know about Kentucky.  

1 hour ago, Sange said:

4. Arbitration costs too much

Total bogus argument.  If they bought the contract, they have to follow the terms.  They can't pick and choose.  

1 hour ago, Sange said:

5. Saying it is account stated

Again, a completely bogus argument.  They must follow the contract.  

1 hour ago, Sange said:

6. That PRA is not the original creditor and does not have to follow the agreement

IF that is true, then you don't have to follow the agreement by paying!  Another bogus argument.  

1 hour ago, Sange said:

Any additional arguments they might use and how I can respond.

Any specific documentation or case law that I should print out and bring with me?

Any response would be greatly appreciated. Thanks.

 

[Brotherskeeper]

@Sange Does the agreement you submitted with your motion to compel include this language?:

"IMPORTANT INFORMATION ABOUT THIS AGREEMENT
Assignment. We may sell, assign or transfer any or all of our rights or duties under this Agreement or your account, including our rights to payments. We do not have to give you prior notice of such action. You may not sell, assign or transfer any of your rights or duties under this Agreement or your account.Enforceability. If any part of this Agreement is found to be void or unenforceable, all other parts of this Agreement will still apply.
Governing Law. Except as provided in the Resolving a Dispute with Arbitration section, this Agreement and your account are governed by federal law and, to the extent state law applies, the laws of Utah without regard to its conflicts of law principles. This Agreement has been accepted by us in Utah.
Waiver. We may give up some of our rights under this Agreement. If we give up any of our rights in one situation, we do not give up the same right in another situation."

"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.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide."

[Brotherskeeper]

22 hours ago, Sange said:

5. Saying it is account stated

Have you posted the complaint anywhere? Are you being sued on an account stated cause of action? 

[Sange]

@Brotherskeeper

 

Yes, that is exactly what it says in the agreement that I submitted with my motion to compel.

[Sange]

2 minutes ago, Brotherskeeper said:

Have you posted the complaint anywhere? Are you being sued on an account stated cause of action? 

I have not posted the complaint. I just read the complaint over and nowhere in the complaint does it say anything about account stated.

[Brotherskeeper]

11 minutes ago, Sange said:

I have not posted the complaint. I just read the complaint over and nowhere in the complaint does it say anything about account stated.

(IANAL) A complaint does not have to use the term "account stated," but will allege the elements of the account stated claim. Can you please post the complaint's allegations with your personal info redacted?

[Sange]

23 minutes ago, Brotherskeeper said:

(IANAL) A complaint does not have to use the term "account stated," but will allege the elements of the account stated claim. Can you please post the complaint's allegations with your personal info redacted?

 

[Brotherskeeper]

@Sange (I am not a lawyer) This complaint does not allege the required elements for an account stated, as I understand it under Michigan law. I don't know Kentucky law. Please focus on paragraph 3 of the affidavit. "Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform... the Account Seller has retained no further interest in said account" 

1 hour ago, Brotherskeeper said:

Assignment. We may sell, assign or transfer any or all of our rights or duties under this Agreement or your account, including our rights to payments.

As I understand this, alleged assignee PRA now has all of Synchrony's rights and duties under the Agreement, including the obligations found in the Agreement's binding Arbitration clause. 

[Sange]

5 minutes ago, Brotherskeeper said:

@Sange (I am not a lawyer) This complaint does not allege the required elements for an account stated, as I understand it under Michigan law. I don't know Kentucky law. Please focus on paragraph 3 of the affidavit. "Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform... the Account Seller has retained no further interest in said account" 

As I understand this, alleged assignee PRA now has all of Synchrony's rights and duties under the Agreement, including the obligations found in the Agreement's binding Arbitration clause. 

Thank you very much for your help, I appreciate it.

So, as far as if they say it is the wrong agreement, my notarized affidavit I filed stating this is the correct agreement would be sufficient? If they bring that up, should I state to the judge that I have submitted a notarized affidavit and unless counsel has a witness from the original creditor saying otherwise, that this is the correct agreement?

In reference to waiving right to arbitration by answering the complaint, I had initially answered stating not enough knowledge or information for everything and therefore deny. I then submitted an amended answer that only stated an affirmative defense that said the court does not have subject matter jurisdiction and that I elected arbitration. Should this be an issue?

Also, if they say arbitration does not apply to small claims. This is not in a small claims court, it is District Civil. The limit on small claims is $2,500. Their claim is for over $3,000. State to judge that this is not in a small claims court, that the amount is over $2,500, and that the agreement only says that they will not REQUIRE to arbitrate small claims court cases.

Just trying to get all information possible before hearing on Friday. I was hoping that an attorney would not show up. However, now there is another motion on the docket at the same time as mine involving PRA. That pretty much guarantees that an attorney will be present, so want to be as prepared as possible. If there is any other recommendations or advice that any one has please let me know. Thank you for all that have posted.

 

[Brotherskeeper]

1 minute ago, Sange said:

So, as far as if they say it is the wrong agreement, my notarized affidavit I filed stating this is the correct agreement would be sufficient? If they bring that up, should I state to the judge that I have submitted a notarized affidavit and unless counsel has a witness from the original creditor saying otherwise, that this is the correct agreement?

I don't know your Kentucky rules of civ procedure or evidence or law. 1.) Does your affidavit comply with the rules in order to be deemed valid? 2.) If yes, does it contain statements of fact within your personal knowledge? 3.) Do you swear this is the applicable agreement or, if not, state where you obtained it (CFPB repository Synchrony archive)?

The complaint makes no assertions of when the account was opened, defaulted on or charged off, only when it was allegedly purchased by PRA on 7/20/17. No documents referred to in the custodian's affidavit are attached, correct?

I don't know where you obtained the 2016 Synchrony agreement you attached to your affidavit. Are there any glaring errors, such as wrong store ( GAP vs PayPal) or issuing bank (Visa vs Mastercard) or date (defaulted in 2015 or opened in 2017), that would impeach the validity of your agreement? 

From my experience on this forum, all of the recent Synchrony arbitration clauses from the various branded cards are basically the same. If they claim your agreement isn't the correct one, do they have any competent evidence to rebut your copy of the agreement? If they come up with another agreement, it will likely contain the identical arbitration clause.