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Gurstel Law Firm is being used by Calvary to come after me.


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24 minutes ago, Goody_Ouchless said:

Arbitration is in these contracts to prevent consumers from filing class action law suits against them. Using arbitration against them was a gimmick (sorry, Fist!!! 😉) that a very clever (or sketchy) person came up with - it was s never intended to be used to get out of debts. That is why you see them compelling arb when a consumer sues, but never following when a consumer uses it to get out of a debt (Debt Buyers, that is - Original Creditors will follow as part of a zero-tolerance policy.)

But the Supreme Court ruled that these JDBs and Original Creditors HAVE to go to arbitration, right? Or at least ruled that the courts must obey the MTC if arbitration is in the CC agreement?

Now I’m just second guessing arbitration altogether! 😂 

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Each state is different, but I believe most follow Federal Guidelines that say, basically, "Arbitration is preferred method of dispute resolution and if the judge finds that an agreement to arbitrate exists between the parties, then a request to arbitrate must be granted." We have seen a few cases where judges, either out of spite or ignorance, go against this and they are always reversed on appeal.

Arb agreements and JAMS/AAA Consumer Standards endeavor to follow Supreme Court "recommendations" but each contract (or set of rules) has slightly different wording. The "small claims" thing was meant to allow consumers the choice of staying in small claims court, rather than arbitrating, but creditors are now twisting that to mean debtors can't use arbitration if case is in a small claims equivalent. Here is where the discrepancy in verbiage causes problems, as some actually define "small claims" as equivalent to Delaware Justice court - which could cover most courts where these cases are heard. That is why, for example, we refer to Synchrony Agreements as "Golden Tickets." Their version of arbitration verbiage is tailor-made for using it against them in these cases. 

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6 minutes ago, Goody_Ouchless said:

Each state is different, but I believe most follow Federal Guidelines that say, basically, "Arbitration is preferred method of dispute resolution and if the judge finds that an agreement to arbitrate exists between the parties, then a request to arbitrate must be granted." We have seen a few cases where judges, either out of spite or ignorance, go against this and they are always reversed on appeal.

Arb agreements and JAMS/AAA Consumer Standards endeavor to follow Supreme Court "recommendations" but each contract (or set of rules) has slightly different wording. The "small claims" thing was meant to allow consumers the choice of staying in small claims court, rather than arbitrating, but creditors are now twisting that to mean debtors can't use arbitration if case is in a small claims equivalent. Here is where the discrepancy in verbiage causes problems, as some actually define "small claims" as equivalent to Delaware Justice court - which could cover most courts where these cases are heard. That is why, for example, we refer to Synchrony Agreements as "Golden Tickets." Their version of arbitration verbiage is tailor-made for using it against them in these cases. 

I believe the Comenity agreement states that THEY will never bring arbitration against you (me) in small claims. That’s the only limitation the agreement states on small claims. I would assume, then, that I am free and clear to file an MTC for arbitration and have it approved?

The rest of the card agreement states that they will pay all fees in order for the arbitration to take place. The wording is longer and more articulate that what I just stated, but that’s the gist of it. 

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Yea, your situation seems good. It's the GA case that got injected here that is strange, because certain Citi agreements had small claims language that might be a problem in GA.

( I have to say, AZ court rules seem so sane a straight forward compared to some places. And "sane" isn't a word often applied to anything out here...)

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21 minutes ago, Thebookmark said:

Now I’m just second guessing arbitration altogether! 😂

Don't second guess it.  This is the method proven to work against JDBs.

It is no more of a "gimmick" than anything written into a contract that is legally enforceable, such as an adjustable interest rate gimmick.  It is very claerly written in plain language right in the contract that the consumer has the right to have ANY dispute heard in arbitration.  Just because the banks put that into the contract to use to THEIR advantage, doesn't mean it is somehow wrong or incorrect to use it you YOUR advantage when you can.  It's no different than scouting out a pitcher and using your learned patterns and history of the guy to "guess" his next move and get a game winning homerun off him.  It's not a "gimmick", it is just using the tools you have to your advantage.

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2 minutes ago, Goody_Ouchless said:

Yea, your situation seems good. It's the GA case that got injected here that is strange, because certain Citi agreements had small claims language that might be a problem in GA.

( I have to say, AZ court rules seem so sane a straight forward compared to some places. And "sane" isn't a word often applied to anything out here...)

Would you be able to point me to a credit card agreement that has arbitration language that is unhelpful to people like us? Something that mentions arbitration but has a lot of restrictions?

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3 minutes ago, Thebookmark said:

The rest of the card agreement states that they will pay all fees in order for the arbitration to take place.

I think it also says they will never seek recovery of their arb costs, right? If not Comnity, one of them does which makes it an even better agreement for JAMS arbitration.  AAA rules preclude fee allocation outright, so it's a non-issue on any AAA arbitrations.

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1 minute ago, Thebookmark said:

Would you be able to point me to a credit card agreement that has arbitration language that is unhelpful to people like us? Something that mentions arbitration but has a lot of restrictions?

Any Citibank card agreement is the most restrictive. And the only restrictions on it are small claims court and that you have to pay the full $250 JAMS filing fee.  Neither of which really completely remove your ability to get to arbitration if you wanted to.

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6 minutes ago, fisthardcheese said:

Don't second guess it.  This is the method proven to work against JDBs.

It is no more of a "gimmick" than anything written into a contract that is legally enforceable, such as an adjustable interest rate gimmick.  It is very claerly written in plain language right in the contract that the consumer has the right to have ANY dispute heard in arbitration.  Just because the banks put that into the contract to use to THEIR advantage, doesn't mean it is somehow wrong or incorrect to use it you YOUR advantage when you can.  It's no different than scouting out a pitcher and using your learned patterns and history of the guy to "guess" his next move and get a game winning homerun off him.  It's not a "gimmick", it is just using the tools you have to your advantage.

This makes sense. I think a couple posts earlier were starting to throw me off a bit. 

Would you be able to explain how the suing process works a bit more? I understand that they send you a summons. Does that mean there is already a set trial date? If I answer the summons with a denial and a defense using arbitration as well as an MTC, does Gurstel then have to set a date for a trial?

There was a comment a page ago that said SOMETIMES (not always) they dismiss the case without prejudice or “wait a year” and then the case gets dismissed with prejudice. My question is: how can it get put on hold for a year after you file an answer?

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I found a random Citibank card agreement and here is what part of it states:

“We’ll pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.”

Wouldn’t this be not-so-good news for someone seeking to get rid of a debt using arbitration?

I’m glad Comenity’s is more straight forward and “consumer friendly” than this. 

 

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6 minutes ago, Thebookmark said:

Wouldn’t this be not-so-good news for someone seeking to get rid of a debt using arbitration?

Yes - and what is telling is that they specifically call out "debt collection" and "frivolous" claims. There's no reason for that to be there other than in direct response to arbitration being used this way. For example, I wouldn't be surprised if they (Citi, not a debt buyer) argued their case in such a way as to make the arbitration look "frivolous" on the part of the consumer. There have been a couple cases against Discover and Amex this year where plaintiff attempted to make those arguments, as I recall.

 

22 minutes ago, fisthardcheese said:

It's not a "gimmick", it is just using the tools you have to your advantage.

I say "gimmick" the broadest sense - the arb clause in CC agreements was never intended to be used this way and it took someone thinking brilliantly outside the box to devise the strategy. Just like a "gimmick" play in football is within the rules, but often "out there." (I use "loophole" in response to those that go this route, while shirking all responsibility, but that's another story.)

 

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So what you’re saying is: They will most likely sue and expect it thrown in the trash. However, once I file my answer with the MTC to arbitrate and send it to Gurstel, they will POSSIBLY (not probably, just saying it’s possible) reconsider their options. 

They might reconsider their options OR they might file in court. Unfortunately, I do not have a crystal ball to predicts with certainty what they will do. I would be ready for any and all possibilities. That is why also, after you send them your answer and MTC, you should not participate in discovery stating that you want the MTC to be heard first and you might consider offering them a settlement to get out of this without incurring too much expense on both sides.

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Can you explain point two and three more?

For point two, that would mean they send you a letter stating that they wish to dismiss the case without prejudice. Had the case been filed in court, they could do that before too much time is spent on the case and the judge would allow it. The Minnesota method simply keeps the courthouse out of something like this saving them time and saving the parties money. The term "Dismissal WITHOUT Prejudice" means that the plaintiff can file the case again in the future assuming the SOL has not run out or there is some other impediment to them filing the case. Most JDBs do not refile however as they are looking for easy targets and they know that you know how the system works.

For point three, in the not too distant past, collectors used to file a case and if someone answered and got through discovery, they would simply let the case languish without filing in court. The case was technically in limbo but the defendant would have to pay the court fees to get the case dismissed leaving this hanging over the debtor possibly forever. It was one of the abuses to the pocket docket system noted to the legislature. To stop this abuse, the legislature passed a law saying that once a case is started, it must be filed in the courthouse within one year. If the case is not within 1 year, the case is dismissed with prejudice. "Dismissed WITH Prejudice" means that the case has been decided and the plaintiff cannot refile the case ever again.

Note for the above that many attorneys have argued that the legislative remedy for the plaintiff not filing the case might be too draconian. Unfortunately, the higher courts have not been given a case to decide that or not so it might be that the Gurstel lawyers might appeal such a dismissal on the grounds that it is too draconian. However, I would doubt that in your case because they definitely would not be able to collect the costs for that appeal and the amount in your case is too low. They would want a better test case. You should understand that however because you never know what the other side will do.

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I was operating under the assumption that a date was set for court once I was sued . . . but you seem to be implying that even when I file an answer there is no date? Correct me if I’m wrong. 

This would be true in Conciliatory (Small Claims) Court or in most other states. However, civil court in Minnesota works on an archaic setup from the 1800s that they never changed which allows for a case to be started without filing in the court. It is called "pocket docket" because the plaintiff sends out the summons and complaint and then puts the papers in their pockets so to speak rather than filing in the courts. When you are sued in Minnesota, the courts probably have no clue that there is a case against you. That does not mean that there is not a case started, that means it has not been filed with the court. Hence, the scheduling will not commence until the case if filed on the court.

Most creditors use the civil process rather than the Conciliatory process because it confused most people and they think the papers are a scam. The legislature required that the papers state that a lawsuit has commenced and that they papers have to be answer but that has not worked to reduce the default rate.

This process is here to stay and will not change. I talked to my state legislator about it years ago and got a lukewarm response to my concerns. I later learned that a major Minnesota employer with a ton of clout in the legislature likes the current civil court process because it keeps their misadventures from the public purview if the settle before a case is filed in the court.

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@WhoCares1000 - Can you elaborate, in simple terms (I know, contradictory) the sequence of events, in terms of where court costs come in to play?

Is it:

Serving Law suit (free)

Answer (free)

Stage Two Law suit (cost)

Formal Answer (cost)

Or is the initial filing "free" and the defendant has to pay to answer that?

 

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8 minutes ago, Goody_Ouchless said:

@WhoCares1000 - Can you elaborate, in simple terms (I know, contradictory) the sequence of events, in terms of where court costs come in to play?

Is it:

Serving Law suit (free)

Answer (free)

Stage Two Law suit (cost)

Formal Answer (cost)

Or is the initial filing "free" and the defendant has to pay to answer that?

 

I was told by others in this forum that in MN filing an answer is $275. Woof. 

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5 hours ago, WhoCares1000 said:

A lawsuit is started when you are served, not when the case is filed in the courthouse in Minnesota. They do not have to pay the court fees until they see what you are going to do and they can decide on that.

To clarify - after they "serve," does one provide a free "answer of intent," for lack of a better term, at which point the plaintiff must decide whether to pay up, or does the defendant have to "pay" to "answer" BEFORE the plaintiff has to "pay" anything to court? If it's the latter, that's messed up.

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5 hours ago, fisthardcheese said:

Neither of which really completely remove your ability to get to arbitration if you wanted to.

The full small claims  clause with the "equivalent" language keeps you out of arb unless you have counterclaims against the plaintiff that exceed the jurisdictional limits of the small claims court. These limits in most small claims courts are between $10,000 and $15,000 and very few, if any,  legitimate counterclaims exceed these amounts. 

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OK, to elaborate, the service of the lawsuit will cost up to $50 depending on if they use mail, service processor, or Sheriff's Office (Carlton County Sheriff's Office charges $50 so I am sure any private process server will be lower than that).

The court fees are not paid until the case is filed in court. Both the plaintiff and defendant must pay the court fees regardless of who files BUT the defendant is not forced to file unless they want something heard. In the not too distant past, that used to be a catch 22 for the defendant of an old case sitting around with no action but the state legislature put in limits to that.

Generally speaking, no fees are paid until a judge is needed. Most of the time that would mean that summons, complaint, answer, and discovery would be done without fees and then the fee is paid if a trial, MSJ, or default judgement is warranted. In this case however, the fee will be required at the point the defendant serves his MTC Arb on the plaintiff (most defendants use the mail CMRRR to do service so there is a cost there but that would be $5 - $10) because that would be the point where a judge is needed.

So basically it goes like this:
 

  1. Create Summons and Complaint (Fee to attorney but since most JDB attorneys are on contract, those are probably negligible)
  2. Service of Summons and Complaint (Process service fees depending on system used)
  3. Answer (Process Service Fees depending on system used)
  4. Discovery or motion draft to the point of stalemate (Usually mail fees but a smart defendant would us CMRRR for everything)
  5. Meet and Confer with attorney to solve stalemate (Free)
  6. Filing with the court (Court Fees due at this pint)

The defendant is not required to file the case in court (and should not do so). The plaintiff is required to file the case if they wish to obtain a judgement. In 2011, the Minneapolis Star Tribune printed a series of stories of debtors going to jail for their debts. That caused the Minnesota legislature to act to limit some of the abuses of the system here. One of those changes was that the law now limits the plaintiff to 1 year to file the case in court after successfully serving a summons and complaint. If the plaintiff does not file the case in court within 1 year, the consequence is that the case is considered dismissed with prejudice. Some attorneys have chimed in saying that the consequence was too draconian but there has been no test case in the MN Court of Appeals or MN Supreme Court as of yet to test that theory. So basically, the plaintiff is the one with the requirement to file the case in court and pay their fees first. The defendant does not have to do anything once the discussions reach a stalemate.

That is why I suggest the OP tell the plaintiff attorneys that they will not participate in discovery until their motion is first heard in court. That puts the onus on the plaintiff to get the case to court. Will still cost the OP $275 in filing fees and $75 to file the motion (again, both sides pay court fees in Minnesota) but not the JDB has some skin in the game and has to consider the cost of looking down the dark rabbit hole.

I hope this answers your questions @Goody_Ouchless

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2 hours ago, WhoCares1000 said:

OK, to elaborate, the service of the lawsuit will cost up to $50 depending on if they use mail, service processor, or Sheriff's Office (Carlton County Sheriff's Office charges $50 so I am sure any private process server will be lower than that).

The court fees are not paid until the case is filed in court. Both the plaintiff and defendant must pay the court fees regardless of who files BUT the defendant is not forced to file unless they want something heard. In the not too distant past, that used to be a catch 22 for the defendant of an old case sitting around with no action but the state legislature put in limits to that.

Generally speaking, no fees are paid until a judge is needed. Most of the time that would mean that summons, complaint, answer, and discovery would be done without fees and then the fee is paid if a trial, MSJ, or default judgement is warranted. In this case however, the fee will be required at the point the defendant serves his MTC Arb on the plaintiff (most defendants use the mail CMRRR to do service so there is a cost there but that would be $5 - $10) because that would be the point where a judge is needed.

So basically it goes like this:
 

  1. Create Summons and Complaint (Fee to attorney but since most JDB attorneys are on contract, those are probably negligible)
  2. Service of Summons and Complaint (Process service fees depending on system used)
  3. Answer (Process Service Fees depending on system used)
  4. Discovery or motion draft to the point of stalemate (Usually mail fees but a smart defendant would us CMRRR for everything)
  5. Meet and Confer with attorney to solve stalemate (Free)
  6. Filing with the court (Court Fees due at this pint)

The defendant is not required to file the case in court (and should not do so). The plaintiff is required to file the case if they wish to obtain a judgement. In 2011, the Minneapolis Star Tribune printed a series of stories of debtors going to jail for their debts. That caused the Minnesota legislature to act to limit some of the abuses of the system here. One of those changes was that the law now limits the plaintiff to 1 year to file the case in court after successfully serving a summons and complaint. If the plaintiff does not file the case in court within 1 year, the consequence is that the case is considered dismissed with prejudice. Some attorneys have chimed in saying that the consequence was too draconian but there has been no test case in the MN Court of Appeals or MN Supreme Court as of yet to test that theory. So basically, the plaintiff is the one with the requirement to file the case in court and pay their fees first. The defendant does not have to do anything once the discussions reach a stalemate.

That is why I suggest the OP tell the plaintiff attorneys that they will not participate in discovery until their motion is first heard in court. That puts the onus on the plaintiff to get the case to court. Will still cost the OP $275 in filing fees and $75 to file the motion (again, both sides pay court fees in Minnesota) but not the JDB has some skin in the game and has to consider the cost of looking down the dark rabbit hole.

I hope this answers your questions @Goody_Ouchless

This was SO helpful to read. 

Have you ever drafted an MTC?

Should I come up with an affidavit (when the time comes) with the CC agreement to show the arbitration clause? I doubt the JDB will have anything to counter my arbitration claim, at that point, if I have an affidavit saying that I’m using the correct CC agreement. 

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4 hours ago, Thebookmark said:

I doubt the JDB will have anything to counter my arbitration claim, at that point, if I have an affidavit saying that I’m using the correct CC agreement. 

You SERIOUSLY need to stop looking for the easy way out.  You are going to get steam rolled assuming what the JDB and court will do.  Start educating yourself and make decisions from knowledge and not assumptions on what you hope will happen.  

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2 hours ago, Clydesmom said:

You SERIOUSLY need to stop looking for the easy way out.  You are going to get steam rolled assuming what the JDB and court will do.  Start educating yourself and make decisions from knowledge and not assumptions on what you hope will happen.  

Alright, I’m not going to lie, your recent comments have been unhelpful. I was simply wondering (using information from other posts) about how affidavits play a role in these scenarios. From what I’ve read, if you bring an affidavit to court saying that the CC agreement you are presenting is the correct one, whatever a JDB lawyer says will not be enough unless they get the original creditor involved. 

The only information you have given me as of late, @Clydesmom, is to take it seriously and that I shouldn’t think there’s an easy way out. 

This is obvious. If you think you’re being helpful, you’re not. I’m on this website TO educate myself. If I thought it was easy, I wouldn’t have spent the last two weeks digging through the endless amounts of information that exists on this website. 

In the future, if I ask a question about something that SEEMS to be me trying to take the easy way out, you can assume that that is not the case. It will save you time and energy from having to type it out. Seriously. Do it. 

If you have anything helpful to say about affidavits, MTCs, or the process in general, I would ask that you do what @WhoCares1000, @fisthardcheese, @Goody_Ouchless, and @Harry Seaward have done—which is actually offer relevant information to my potential case. 

LET ME REPEAT:

Yes, this process is difficult. 

Yes, I am doing as much research as I can with the time I have. 

When I ask questions about this case going away without a trial, it is because I want to know more about the process in general. Do I hope that I am the small minority where I fall through the cracks? Of course. Everyone hopes. Is that what I’m planning for? No. This is why I made an account here and why I refresh it every hour and search older posts. 

Please. Please just stop. 

If there is information on this post that others have given me that you think would lead to too much of a lazy approach, please correct that information. I think that would be very helpful. 

I would like to move past this and I will update when I learn something new relevant to my issue. 

If anyone has ANY other helpful information I would love to hear!

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22 minutes ago, Thebookmark said:

From what I’ve read, if you bring an affidavit to court saying that the CC agreement you are presenting is the correct one, whatever a JDB lawyer says will not be enough unless they get the original creditor involved. 

 

 

Not sure about that last part. I think it sometimes has to do with the judge in your case because JDBs aren't going to have every single piece of evidence they need as proof, but they'll have just enough. For instance, with all the e-signing that happens now, few people have an actual signed contract anymore.

The point of the affidavit is you saying that you're presenting a copy of the card agreement at the time of default and the arbitration provision in that agreement applies. Therefore, your MTC must be granted due to what it says in the agreement. Have some people had their MTC denied anyway? Yes, in which case they should appeal.

And for your earlier question about being free and clear if you file an MTC and have it approved: just be prepared to argue for it. When I went to court, I was hoping to be one of the lucky ones to just show up and have the bailiff tell me my case was dismissed, lol. No such luck. I had to sit down with the judge and answer his (few) questions about why I wanted arb. This forum helped me prepare a great deal. 

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26 minutes ago, FLnative said:

Not sure about that last part. I think it sometimes has to do with the judge in your case because JDBs aren't going to have every single piece of evidence they need as proof, but they'll have just enough. For instance, with all the e-signing that happens now, few people have an actual signed contract anymore.

The point of the affidavit is you saying that you're presenting a copy of the card agreement at the time of default and the arbitration provision in that agreement applies. Therefore, your MTC must be granted due to what it says in the agreement. Have some people had their MTC denied anyway? Yes, in which case they should appeal.

And for your earlier question about being free and clear if you file an MTC and have it approved: just be prepared to argue for it. When I went to court, I was hoping to be one of the lucky ones to just show up and have the bailiff tell me my case was dismissed, lol. No such luck. I had to sit down with the judge and answer his (few) questions about why I wanted arb. This forum helped me prepare a great deal. 

I appreciate the response. 

Ive heard that JDBs will argue that arbitration is not in the agreement (or at least presented differently), which is why it’s important to have that affidavit to show that it is. 

What I meant to say was that a JDB can’t really argue that it’s not in the contract if you have the affidavit. Is that true?

Thanks!

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Well, the affidavit also shows you have the correct agreement because sometimes they change. I know one poster here had an agreement that was off by a month or so and the other side caught that. So you want to make sure you have the right one before having an affidavit for it; you definitely don't want to give the other side any leverage with wrong agreements. 

Now, I did have the other side say they were suing me on account stated, not contract breach, which was a worry for me (I've seen some cases where an MTC was denied because of that). I did have an argument for that (the agreement says "any and all disputes and claims are subject to arb and account stated isn't listed as an exception") but I didn't have to use it because the judge asked a question at that point and their atty must have gotten derailed because he didn't bring it up again.

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3 minutes ago, FLnative said:

Well, the affidavit also shows you have the correct agreement because sometimes they change. I know one poster here had an agreement that was off by a month or so and the other side caught that. So you want to make sure you have the right one before having an affidavit for it; you definitely don't want to give the other side any leverage with wrong agreements. 

What happened to the case where he had the wrong agreement?

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10 minutes ago, Thebookmark said:

What happened to the case where he had the wrong agreement?

Let me see if I can find it. From what I recall, it wasn't that bad.

Edited: Here it is. OP's MTC was granted, despite that little hiccup.

Edited further: Looks like it wasn't even the date that was the issue. But still, you want the right agreement since your affidavit is a sworn statement.

 

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