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MTC Arbitration Hearing Advice


Sange
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27 minutes ago, Sange said:

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?

In Michigan, an amended answer supercedes the previous answer. Did you serve and file your amended answer according to your court rules? Some court rules require that the court first give permission to amend or that the plaintiff stipulate to the request prior to the filing. If you followed your court rules to properly amend your answer, and it was accepted by the judge, it shouldn't be an issue. If you did not, and it is raised by the opposing side, you may have to ask the judge for permission to amend via a motion. Again, knowing and following your state and local rules is important.

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21 minutes ago, Brotherskeeper said:

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. 

The affidavit I submitted does comply with the rules as far as I know. I did swear that it is the correct agreement according to my knowledge, and had it notarized. I did not state in the affidavit where I obtained the agreement.

I obtained the agreement from the consumerfinance.gov site. It is for the exact account I had which was CareCredit through Synchrony. It is the correct year also. The account was defaulted in June of 2016. The agreement is from 2016.

There were no other documents attached to their affidavit. I only received notice of service for summons, the complaint and affidavit I posted, and a page about them receiving electronic notification.

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@Sange

Plaintiff has filed no written response in opposition to your motion to compel arbitration, correct? (Have you found the motion response rules yet?)  Plaintiff has not objected to the filing of an amended answer, correct? (IANAL) Plaintiff would have to argue that your amended answer should not be considered and that failure to assert arbitration as an affirmative defense--if that is required under your rules--waives your right to arbitration. This is where it may be critical to know your state's controlling case law on waiver, who bears the burden to prove or disprove waiver and if that burden has or hasn't been met. 

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1 hour ago, Brotherskeeper said:

In Michigan, an amended answer supercedes the previous answer. Did you serve and file your amended answer according to your court rules? Some court rules require that the court first give permission to amend or that the plaintiff stipulate to the request prior to the filing. If you followed your court rules to properly amend your answer, and it was accepted by the judge, it shouldn't be an issue. If you did not, and it is raised by the opposing side, you may have to ask the judge for permission to amend via a motion. Again, knowing and following your state and local rules is important.

These are the rules that I have found online for amended answer:

AMENDING AN ANSWER 7. Can a defendant amend its answer? If so: When? What grounds, if any, must be shown to justify an amendment?

TIME TO AMEND A defendant may amend its answer once without leave of court within 20 days after it is served (Ky. R. Civ. P. 15.01). A defendant may also amend its answer either by: Written consent from the adverse party. Leave of court. (Ky. R. Civ. P. 15.01.)

GROUNDS FOR AMENDMENT Leave to amend an answer is to be freely given when justice so requires (Ky. R. Civ. P. 15.01). A defendant must show that its motion to amend is made in good faith. Good faith can be determined by: The timeliness of the motion. The excuse for the delay. The resulting prejudice to the other party. (Farmers Crop Ins. Alliance, Inc. v. Gray, No. 2009-CA-000969-MR, 2010 WL 5018284, at *3 (Ky. Ct. App. Dec. 10, 2010).)

I filed my initial answer on April 4th, 2018. I believe i filed my amended answer on June 20th. I did not get written consent from adverse party or ask for leave of court.

If the attorney raises this issue, should I ask the judge for permission to amend by oral motion?

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8 minutes ago, Brotherskeeper said:

@Sange

Plaintiff has filed no written response in opposition to your motion to compel arbitration, correct? (Have you found the motion response rules yet?)  Plaintiff has not objected to the filing of an amended answer, correct? (IANAL) Plaintiff would have to argue that your amended answer should not be considered and that failure to assert arbitration as an affirmative defense--if that is required under your rules--waives your right to arbitration. This is where it may be critical to know your state's controlling case law on waiver, who bears the burden to prove or disprove waiver and if that burden has or hasn't been met. 

The plaintiff has not filed written response in opposition to my motion to compel arbitration. I just called the court a few minutes ago and no response has been filed.

Plaintiff has not objected to filing of an amended answer.

I can not find specific rules as far as responding to a motion to compel arbitration. This is all I have found, which is specific to a motion to strike:

Response by Plaintiffs

A plaintiff is typically allowed to file a response to a motion to strike, although there is no time period set out by the Kentucky Rules of Civil Procedure about when that response must be filed. Before filing a response, counsel should check the local rules in a given jurisdiction, as different courts throughout Kentucky have their own local rules.

I have contacted the local court several times asking about this. I have been told numerous times that there is no deadline for the to file a response and that they have until the hearing date to respond.

The rules I have found in regard to asserting arbitration as an affirmative defense are as follows:

In Kentucky, an answer must indicate whether the defendant is admitting or denying the allegations in the complaint (Ky. R. Civ. P. 8.02). If applicable, the defendant may state that it is without knowledge or information sufficient to form a belief about the truth of the allegation, and this operates as a denial (Ky. R. Civ. P. 8.02). A party must also assert any known affirmative defense that it has available to it when it files its answer (Ky. R. Civ. P. 8.03).

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1 minute ago, Sange said:

Quick question, would it be a good idea to email the attorney for this case and see if they are willing to settle and dismiss the case before the hearing?

Honestly, I have no idea. It appears that you have gotten by this far without understanding or following the actual rules of Kentucky civil procedure. Above, you quote someone's interpretations of the rules; the actual rule that governs is cited in parentheses. If your motion to compel is granted, or if you're given an opportunity to amend it or your answer to conform to the rules, you'd be in an excellent position to discuss whether PRA wishes to avoid JAMS. If your motion is denied, you'd remain in court and would have an opportunity at any point prior to summary judgment or trial to settle. 

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6 minutes ago, Brotherskeeper said:

Honestly, I have no idea. It appears that you have gotten by this far without understanding or following the actual rules of Kentucky civil procedure. Above, you quote someone's interpretations of the rules; the actual rule that governs is cited in parentheses. If your motion to compel is granted, or if you're given an opportunity to amend it or your answer to conform to the rules, you'd be in an excellent position to discuss whether PRA wishes to avoid JAMS. If your motion is denied, you'd remain in court and would have an opportunity at any point prior to summary judgment or trial to settle. 

I really appreciate all your responses. This is the exact wording of the rule for amending answers:

A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be longer, unless the court otherwise orders.
 
Rules Civ. Proc., Rule 15.01, KY ST RCP Rule 15.01
 
Does that mean since they did not respond to any of the answers that I am allowed to amend my answer at any time?
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8 minutes ago, Brotherskeeper said:

 If your motion to compel is granted, or if you're given an opportunity to amend it or your answer to conform to the rules, you'd be in an excellent position to discuss whether PRA wishes to avoid JAMS. If your motion is denied, you'd remain in court and would have an opportunity at any point prior to summary judgment or trial to settle. 

^^^^

This

I have no idea how much leeway the judge in your case will give to a pro se defendant.  Some give quite a bit of leeway, some jump on the bulldozer with the plaintiff and run you over.

Note that they did not file an answer to your MTC.  It is possible they will go along with it. 

If that happens, either PRA will avoid JAMS and you have won, or else they will go into JAMS and you negotiate with them,  

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5 minutes ago, Sange said:

Does that mean since they did not respond to any of the answers that I am allowed to amend my answer at any time?

No. They are not required to file an "answer" to your responsive pleading (aka your answer). If you had filed a counterclaim against them, they would be allowed/required to give a responsive pleading (aka an answer) to your claims against them. 

7 minutes ago, Sange said:

within 20 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.

After 20 days of serving your answer to their complaint, you need permission from the court, or written consent by PRA to avoid a motion to the judge for leave to file and amended answer. 

I don't know whether your rules require arbitration to be asserted as an affirmative defense in a responsive pleading (answer) or it is waived. (IANAL) Since plaintiff did not submit a copy of the agreement with its complaint, you answered the complaint before you obtained the applicable contract and discovered the existence of the arbitration clause. You did not delay asserting your intent to arbitrate the disputes for any improper purpose. You informed plaintiff of your intent to arbitrate in your timely responses to its discovery requests, so plaintiff was not prejudiced. You filed a demand with JAMS and notified plaintiff, correct? The delay in getting the hearing properly scheduled was a rookie pro se mistake. Your judge obviously gave your motion to compel a continuance and not an outright denial by rescheduling the hearing. 

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58 minutes ago, Brotherskeeper said:

No. They are not required to file an "answer" to your responsive pleading (aka your answer). If you had filed a counterclaim against them, they would be allowed/required to give a responsive pleading (aka an answer) to your claims against them. 

After 20 days of serving your answer to their complaint, you need permission from the court, or written consent by PRA to avoid a motion to the judge for leave to file and amended answer. 

I don't know whether your rules require arbitration to be asserted as an affirmative defense in a responsive pleading (answer) or it is waived. (IANAL) Since plaintiff did not submit a copy of the agreement with its complaint, you answered the complaint before you obtained the applicable contract and discovered the existence of the arbitration clause. You did not delay asserting your intent to arbitrate the disputes for any improper purpose. You informed plaintiff of your intent to arbitrate in your timely responses to its discovery requests, so plaintiff was not prejudiced. You filed a demand with JAMS and notified plaintiff, correct? The delay in getting the hearing properly scheduled was a rookie pro se mistake. Your judge obviously gave your motion to compel a continuance and not an outright denial by rescheduling the hearing. 

I have found a rule on affirmative defense and it says that you are required to list arbitration as an affirmative defense in your answer.

I did file with JAMS, and did notify the attorney and plaintiff and sent a copy of the demand to them. They can not proceed unless the fees are paid first  but they did accept the demand.

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8 minutes ago, Sange said:

MTC was granted this morning. Attorney for PRA did not show.

I would like to thank anyone who had responded to this topic, particularly Brotherskeeper and fisthardcheese.

Great news!! Follow @fisthardcheese 's advice in his pinned arb thread once you have your copy of the judge's order in hand. 

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Quick question. I filed Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative to Stay Proceedings Pending Arbitration. 

The judge only said granted. I have not received order, it will be mailed to me.

When searching local public records for this court, the case does not come up anymore as of today.

Was the case dismissed? If yes, with or without prejudice?

I am waiting for copy of order through mail. Should I continue with pinned thread on arbitration advice and contact JDB for mutual dismissal with prejudice when I receive the order?

As you can probably tell, totally new to this and always have lots of questions. Thanks.

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12 hours ago, Sange said:

Quick question. I filed Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative to Stay Proceedings Pending Arbitration. 

The judge only said granted. I have not received order, it will be mailed to me.

When searching local public records for this court, the case does not come up anymore as of today.

Was the case dismissed? If yes, with or without prejudice?

I am waiting for copy of order through mail. Should I continue with pinned thread on arbitration advice and contact JDB for mutual dismissal with prejudice when I receive the order?

As you can probably tell, totally new to this and always have lots of questions. Thanks.

I would not take any action until you read the actual order from the judge.  It is possible that the case is still only stayed but moved off the active docket and therefore not accessible online anymore.  I would make sure before assuming it is dismissed.  Let us know what the judge's order says and then we can give better advice on moving forward.  Either way, if this were me, I would get everything ready to file in JAMS. Get it all printed and ready to drop in the mail to both PRA and to JAMS.  Don't seal the envelopes until you get the judge's order, however.  Depending on what it says you MIGHT want to include the copy with your filing.  But also, if it does say dismissed, I would suggest NOT including the copy.

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4 hours ago, fisthardcheese said:

I would not take any action until you read the actual order from the judge.  It is possible that the case is still only stayed but moved off the active docket and therefore not accessible online anymore.  I would make sure before assuming it is dismissed.  Let us know what the judge's order says and then we can give better advice on moving forward.  Either way, if this were me, I would get everything ready to file in JAMS. Get it all printed and ready to drop in the mail to both PRA and to JAMS.  Don't seal the envelopes until you get the judge's order, however.  Depending on what it says you MIGHT want to include the copy with your filing.  But also, if it does say dismissed, I would suggest NOT including the copy.

It is already filed with JAMS, I did it before the hearing.

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19 hours ago, FLnative said:

Why is that?

That way when the JDB does not pay the JAMS fees, JAMS will close the file and the case will essentially be dead.  If you send the court order to arbitrate, JAMS may not close the file as easily and you would be forced to arbitrate for longer until you can settle with the JDB.

17 hours ago, Sange said:

It is already filed with JAMS, I did it before the hearing.

Okay, then depending on what your order says from the judge will determine what my next step would be. Let us know when you get it.

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2 hours ago, fisthardcheese said:

That way when the JDB does not pay the JAMS fees, JAMS will close the file and the case will essentially be dead.  If you send the court order to arbitrate, JAMS may not close the file as easily and you would be forced to arbitrate for longer until you can settle with the JDB.

Okay, then depending on what your order says from the judge will determine what my next step would be. Let us know when you get it.

Thank you. Yes, as soon as I get it I will post here.

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I received an email that was also sent to JAMS from PRA attorney. It states that they will be dismissing the case and not proceeding with arbitration.

I would like them to state it will be dismissed with prejudice, that they will delete all entries from all credit reporting agencies and not issue an IRS form 1099-C in regard to this matter. Should I email the attorney back stating this?

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7 minutes ago, Sange said:

I received an email that was also sent to JAMS from PRA attorney. It states that they will be dismissing the case and not proceeding with arbitration.

I would like them to state it will be dismissed with prejudice, that they will delete all entries from all credit reporting agencies and not issue an IRS form 1099-C in regard to this matter. Should I email the attorney back stating this?

 You could give it a try. However, don’t be surprised if they do not agree because they have no reason to dismiss with prejudice, etc. 

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@Sange Did you submit a proposed order for the judge to fill out and sign when you filed your motion to compel? If yes, what did the proposed language say--stay or dismiss? If you didn't submit the proposed order with your motion, in my opinion you should wait to see what the judge ordered. 

IIRC, you've already filed a demand with JAMS, so it is your claim and not PRA's. @fisthardcheese hopefully will weigh in. 

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16 minutes ago, Brotherskeeper said:

@Sange Did you submit a proposed order for the judge to fill out and sign when you filed your motion to compel? If yes, what did the proposed language say--stay or dismiss? If you didn't submit the proposed order with your motion, in my opinion you should wait to see what the judge ordered. 

IIRC, you've already filed a demand with JAMS, so it is your claim and not PRA's. @fisthardcheese hopefully will weigh in. 

Yes, I included a proposed order with my MTC that says, "Further, this case shall be stayed pending the outcome of private arbitration."

Sorry, should have pointed this out earlier totally forgot about that. I will also point out that I did see the judge fill out the proposed order I submitted. So, although I do not have a copy of the order yet, it would make sense that the case was stayed, not dismissed. 

Yes, it is already filed with JAMS.

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