Hearing next week - Midland Opposed MTC Arb in CA– Evidence Inadmissible - I messed UP

[Tiglit18]

Hi all - just when I feel confident I get hit with something I did not anticipate....that should teach me to never relax lol. I MESSED UP! I used the wrong cc agreement (date off by a month) and they caught it. All my case info is listed at the end for reference since this is my first post about this case. 

Cuurent issue: I filed a MTC Arb (Motion, notice, compy of demand letter and copy of WRONG cc agreement) and received objections from the plaintiff. They are stating that my MTC Arb rests entirely on inadmissible hearsay evidence, or at best, a contract to which neither of the litigants are a party to. I did not include an affidavit in my MTC, nor have I in the past and I have successfully gotten 3 cases dismissed. Please chime in with your much appreciated wisdom on how I can go about fixing this. My hearing is next week and I just got their opposition today. @fisthardcheese @LaneBlane @Seadragon @BV80

In the Opposition it states:

-Defendant has not presented competent evidence of an arbitration agreement

- Movants documentary evidence is inadmissible (authentication of a writing is required)

-Movants factual assertions are inadmissible hearsay

- Exhibit A Cannot compel arbitration of nonparty disputes (exhibit A was my copy of the Arbitration demand to the plaintiff)

My questions:

1. Can I respond with an amendment to my original MTC and include the correct contract? (I am guessing no)

2. Because I did not include an affidavit certifying the agreement was a true and correct copy, did I completely mess this up? If yes is there a remedy?

3. I found the agreement from the CFPB website (this is not mentioned anywhere in my MTC). Based on the rule of evidence 1005 & Rule 902(4), wouldn’t this document be allowed to be placed into evidence since it is from a government website?

Background:

1. Who is the named plaintiff in the suit? Midland Funding LLC

2. What is the name of the law firm handling the suit? Midland (San Diego)

3. How much are you being sued for? Over $2500

4. Who is the original creditor? Comenity Bank

5. How do you know you are being sued? Received summons and complaint for Account Stated

6. How were you served? In person

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Received letters, but did not respond

9. What state and county do you live in? California, Riverside

10. When is the last time you paid on this account? Aug. 2016

11. What is the SOL on the debt? 4 years

12. What is the status of your case? Suit served? Motions filed? Suit served, Answer, and MTC Arbitration

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO

14. Did you request debt validation before the suit was filed? NO

15. How long do you have to respond to the suit? 30 days - Done

 16. What evidence did they send with the summons? Bill of Sale, Affidavit of Sale, Certificate of Conformity, Notification of new owner from Midland, account statement from Sept. 2016

[BV80]

@Tiglit18

@sadincaand @RyanEXare from your state.  Hopefully, they'll chime in.

[Tiglit18]

@BV80 THANK YOU! Hoping they do  I feel like such a newbie 

[Tiglit18]

Does anyone see an issue with taking the matter off the calendar and resubmitting a new MTC with the correct documents???

 

My local court rules states the following on Continuances and Matters Taken Off Calendar:

"If the moving party determines that a hearing on the motion is no longer necessary,
the party shall immediately notify the court in writing that the motion should be
taken off calendar. When the hearing is imminent, the moving party shall also
immediately give oral notice to the clerk in the assigned department that the motion
should be taken off calendar." 

[LaneBlane]

I'm located in Minnesota.

When I filed my MTC, I forgot to schedule a court date.  When I discovered the mistake a few days later, I re-filed my MTC.  In the opening to the revised MTC I included this statement, "This Motion to Compel Arbitration was improperly submitted on [date] without first setting a hearing date.  Defendant apologizes to the Court for failing to follow proper procedure."  I didn't have any issues whatsoever.

Would it be possible for you to reschedule the hearing instead of having it taken off the calendar?  The motion is still necessary.  You just need time to file a revised motion that includes the correct credit card agreement.

Does the proper credit card agreement include the same or similar arbitration agreement?  If they're similar, are there any material differences?

 

[Tiglit18]

@LaneBlane hi! Thank you so much for your response. I inquired about postponement but was told that to do so I would need to have at least 30 days prior to my hearing which I only have 9.

I was told I could submit a response (it’s optional) to the plaintiffs opposition which I am drafting right now (it would be due no later than this Thursday) but that it would be up to th judge to determine if any newly presented information in my response warranted an extension so that the plaintiff had ample time to respond.

I was told canceling it outright after the opposition was received might open me up to the plaintiff requesting relief for their time/costs of drafting the opposition. 

At this point I am thinking a crafty response might be best. I’ve got it all down, would you be willing to take a glance if I direct message it to you? 

Any and all further advice would be wonderful!

[Tiglit18]

@LaneBlane

sorry I forgot to answer your questions. 

The agreement is the same minus a different APR. everything involving the arb section was identical to the incorrect agreement I submitted.

[LaneBlane]

1 hour ago, Tiglit18 said:

I was told I could submit a response (it’s optional) to the plaintiffs opposition which I am drafting right now (it would be due no later than this Thursday) but that it would be up to th judge to determine if any newly presented information in my response warranted an extension so that the plaintiff had ample time to respond.

If the Arbitration Provision in both credit card agreements is the same, I don't see how it changes the grounds on which you filed your MTC.   You made a mistake by referring to and attaching the wrong agreement.  You're just trying to correct this.

1 hour ago, Tiglit18 said:

I was told canceling it outright after the opposition was received might open me up to the plaintiff requesting relief for their time/costs of drafting the opposition. 

The local court rules you provided state that a motion should be removed from the calendar if it's no longer necessary.  Because your motion is necessary, I would see if the judge will grant you an extension.  This is just my opinion.  You should ask someone with CA court experience.  @calawyer

1 hour ago, Tiglit18 said:

The agreement is the same minus a different APR. everything involving the arb section was identical to the incorrect agreement I submitted.

As I mentioned above, if both credit card agreements have the same Arbitration Provision, it shouldn't change the grounds on which you filed your MTC.

 

ALL THIS IS BASED ON MY LIMITED EXPERIENCE AND OPINION.  I'M ALSO IN MINNESOTA.

[Tiglit18]

@LaneBlane

You make perfect sense - I called the clerk and this person again reiterated the fact that the no postponements can be made prior to my hearing next week due to the 30day rule. She stated the judge may automatically issue one though once he reads my response but mainly so the plaintiff had time to review/object.

I’ll be interested to hear if any Cali people can weigh in. I’m moving forward with my response so the judge has everything he needs to see that 1. An agreement exists and 2. It contains an arb provision. That’s something the JDB cannot dispute and I’m just hoping the judge sees it that way too. 

[LaneBlane]

I was fortunate to find myself in front of a judge who seemed to be pro se friendly.  I dressed for court, brought my papers in a briefcase, and was prepared.  If I wasn't prepared, it's very possible the judge wouldn't have been so nice.

I read through your first post again and picked up on something I didn't catch earlier.  It doesn't appear as though the Plaintiff is making the claim that the credit card agreement you attached is incorrect.  They're saying they're not bound by it because the agreement is between Comenity Bank and you.

You need to look through your agreement to see if there's any language that says claims between you and Comenity, as well as Comenity's assigns are subject to arbitration.  If Midland purchased the account from Comenity, they became the assigns and essentially stepped into Comenity's shoes.  As a result, they're bound by the same Arbitration Provision.

I have a Comenity account, so I'm going to bring up an agreement to see what I can find.  I'll let you know ASAP.

 

 

[Tiglit18]

@LaneBlane

I’m hoping I don  have to appear but I’ve got my suit ready if it comes to it. Plus a xanax for the major fear of speaking public LOL!!

right before the conclusion they wrote: “ assuming that the purported arb agreement is admissible, it could  it bind the parties to this litigation by reason of its effective date occurring after the date respondent acquired all rights and title to the disputed account thereby terminating the relationship between Movant and the original creditor that authored the purported evidence.

 

as far and the language in my agreement it stated: “we”, “you”, “us” and “our” mean Comenity bank and any successor or assigns.

[LaneBlane]

Comenity has a web page where you can bring up the agreements for a variety of their credit cards.  Link:  https://d.comenity.net/cca-all/pub/Home.xhtml

I brought up the Crate and Barrel card agreement that includes the following language:  "In this Agreement, "We," "Us" and "Our" mean Comenity Bank and any successor or assigns. "You" and "Your" mean each person who submits an application or solicitation for an Account with us. "Account" means your credit card account with us. "Card" means each credit card we issue for your Account, as applicable. "Credit Plan" means one or more payment program options Crate and Barrel may ask us to offer from time to time."

Does your particular agreement include same or similar text?

Please don't take my advise and run with it.  In my opinion, though, the argument you need to make is that Midland is an assign of the account and has stepped into the role of the original creditor.  As such, Midland is a party to the Arbitration Provision of the credit card agreement.  If you plan to use lack of standing as a defense (claiming Midland doesn't own the account), you would need to take the wording of your argument into consideration.  (i.e. Because Midland claims all title and interest in the account was transferred to them...)

[LaneBlane]

12 hours ago, Tiglit18 said:

right before the conclusion they wrote: “ assuming that the purported arb agreement is admissible, it could  it bind the parties to this litigation by reason of its effective date occurring after the date respondent acquired all rights and title to the disputed account thereby terminating the relationship between Movant and the original creditor that authored the purported evidence. 

Yep!  It seems they are just making the argument that they are not a party to the Arbitration Provision.  The language in the credit card agreement says otherwise.

I just read I c(3) from the Arbitration Provision again.

" "Claim" does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 (the "Class Action Waiver"), the last sentence of Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. 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. "

I interpret this to mean the Court will make a decision on the validity and enforceability of the Arbitration Provision when the judge decides whether or not to grant your MTC.

[LaneBlane]

26 minutes ago, Tiglit18 said:

I’m hoping I don  have to appear but I’ve got my suit ready if it comes to it. Plus a xanax for the major fear of speaking public LOL!!

I was so nervous before I appeared before the judge.  A minute or two in, I was just fine.  Just remember to breathe and come prepared.

I hope someone else comments on your thread.  I believe my advise is on the mark.  I would just feel more comfortable if someone else weighed in.

Do you understand the reasons behind the Plaintiff's arguments against your MTC now?

[Tiglit18]

@LaneBlane

My response is focusing on the plaintiffs multiple admissions that they are the sole owner and bear all rights to the account, that the issuer and I had an agreement which contained the arb provision at the time plaintiff was assigned the account, that per that agreement I followed the procedures to commence arbitration for the claims they brought against me in court, and that the plaintiff failed to participate within the allotted timeframe of 30 days after my demand to arb was served on them hence the MTC.

I then went into evidence rules from 902, brought up the law requiring issuers to submit agreements to CFPB which then becomes public record, that the issuer did so, that I obtained the last agreement posted before the assignment, that the original agreement submitted with my MTC only supports the fact that Comenity still continues to include the arb provision and that by definition in the agreement Plaintiff is considered a party subject to arb. 

This judge has already ruled in my favor with a lot less input from me so I am really hoping he will be satisfied that I am not making bogus claims with this MTC

[Tiglit18]

3 minutes ago, LaneBlane said:

I was so nervous before I appeared before the judge.  A minute or two in, I was just fine.  Just remember to breathe and come prepared.

I hope someone else comments on your thread.  I believe my advise is on the mark.  I would just feel more comfortable if someone else weighed in.

Do you understand the reasons behind the Plaintiff's arguments now?

I really hope I’m on the right track with all this - it would be great to hear others perspectives but due to the time constraints it may just be the two of us lol.

I do understand their arguments and I think I can provide the judge with enough to have him grant my motion - obviously I am preparing for the worst but trying to keep my hopes up regardless. 

[LaneBlane]

9 minutes ago, Tiglit18 said:

@LaneBlane

My response is focusing on the plaintiffs multiple admissions that they are the sole owner and bear all rights to the account, that the issuer and I had an agreement which contained the arb provision at the time plaintiff was assigned the account, that per that agreement I followed the procedures to commence arbitration for the claims they brought against me in court, and that the plaintiff failed to participate within the allotted timeframe of 30 days after my demand to arb was served on them hence the MTC. 

I then went into evidence rules from 902, brought up the law requiring issuers to submit agreements to CFPB which then becomes public record, that the issuer did so, that I obtained the last agreement posted before the assignment, that the original agreement submitted with my MTC only supports the fact that Comenity still continues to include the arb provision and that by definition in the agreement Plaintiff is considered a party subject to arb.  

This judge has already ruled in my favor with a lot less input from me so I am really hoping he will be satisfied that I am not making bogus claims with this MTC

I don't believe you need to focus on the plaintiff's admissions.   Just say something like...

The Plaintiff asserts they are the owner of the account and that all rights and interest to the account were assigned to them.  Pursuant to the agreement that governs the account, Midland has assumed the role of the original creditor.  Pursuant to Section A, Definitions, "In this Agreement, "We," "Us" and "Our" mean Comenity Bank and any successor or assigns."  As the assign, Midland is a party to the Credit Card Agreement and the Arbitration Provision contained therein.

Now there is something in the Crate and Barrel Arbitration Provision that's concerning:  Parties Subject to Arbitration:  Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.

I'm not 100% clear on whether or not the definitions of we, us, and are in the Arbitration Provision override the definitions in Section A.  The Arbitration Provision definitions cannot be applied to other parts of the agreement.  However, the definitions in Section A do not say they cannot be applied to the Arbitration Provision.

[Tiglit18]

3 minutes ago, LaneBlane said:

I don't believe you need to focus on the plaintiff's admissions.   Just say something like...

The Plaintiff asserts they are the owner of the account and that all rights and interest to the account were assigned to them.  Pursuant to the agreement that governs the account, Midland has assumed the role of the original creditor.  Pursuant to Section A, Definitions, "In this Agreement, "We," "Us" and "Our" mean Comenity Bank and any successor or assigns."  As the assign, Midland is a party to the Credit Card Agreement and the Arbitration Provision contained therein.

Now there is something in the Crate and Barrel Arbitration Provision that's concerning:  Parties Subject to Arbitration:  Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.

I'm not 100% clear on whether or not the definitions of we, us, and are in the Arbitration Provision override the definitions in Section A.  The Arbitration Provision definitions cannot be applied to other parts of the agreement.  However, the definitions in Section A do not say they cannot be applied to the Arbitration Provision.

So do you think I should highlight Section A and not the Parties Subject to Arbitration blurb? 

Im not 100% on the application of the terms either. 

[LaneBlane]

Is your agreement the same as the Crate and Barrel agreement when it comes to the parties subject to arbitration?

When it comes to the language in these agreements, you can sometimes split hairs and come up with different interpretations.

A. Definitions

In this Agreement, "We," "Us" and "Our" mean Comenity Bank and any successor or assigns.

I c(2) Arbitration Provision

Parties Subject to Arbitration:  Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms "we," "us" and "our" mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.

 

I regret I don't have an answer for you here.  Hopefully someone else can offer their opinion on the language.

 

[LaneBlane]

28 minutes ago, Tiglit18 said:

So do you think I should highlight Section A and not the Parties Subject to Arbitration blurb? 

If you did this, and the Plaintiff is familiar with the "Parties Subject to Arbitration" language, they'll certainly have an argument to oppose your MTC.

Have you searched the threads on this site for other cases involving Comenity Bank?

[Tiglit18]

Yes my agreement is the same. I’ve searched and found lots of Midland posts but I’ll do a search on Comenity as well...You’ve been a great help and def made me feel better about it all. I have until Thursday to file/serve my response so I’ll see if anyone chimes in tomorrow.

I plan to tweak my response a bit, make it less wordy. Im leaning towards removing the Parties Subject portion and focusing on the Definitions section - the judge will have to decide on whether the arb provision applies to successors but watching his rulings I think I have a good shot. Plus why give them ammunition.

Its amazing how stressful these things are when you are going through them. Thank you for keeping me company on here tonight!!!

Signing out until tomorrow

[LaneBlane]

Hopefully someone else here can help you form an argument that supports any assigns to the account being a party to the Arbitration Provision.

The only thing I can think of is that the Plaintiff stands in place of Comenity in Section I c(2).  Otherwise, you're being stripped of your right to arbitrate.

[Tiglit18]

10 hours ago, LaneBlane said:

Hopefully someone else here can help you form an argument that supports any assigns to the account being a party to the Arbitration Provision.

The only thing I can think of is that the Plaintiff stands in place of Comenity in Section I c(2).  Otherwise, you're being stripped of your right to arbitrate.

Hoping so

[Tiglit18]

So...all my stressing and research paid off! The judge granted my motion and said all of plaintiffs objections were overruled!! I could not be more excited on this victory!

thank you @LaneBlane for your input and company through this hurdle!!

[Brotherskeeper]

11 hours ago, Tiglit18 said:

So...all my stressing and research paid off! The judge granted my motion and said all of plaintiffs objections were overruled!! I could not be more excited on this victory!

thank you @LaneBlane for your input and company through this hurdle!!

Just came across your thread. Congratulations!! You earned your victory! Also, thank you to @LaneBlane for the valuable assist and support.