gg2008

Motion for Summary Disposition Midland Funding

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Draft of amended answer and affidavit. I have the correct format in my documents. This is just the verbiage.

 

Amended answer

 

5 & 9 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. MCR 2.118. Plaintiff has failed to provide a signed contract from Walmart showing the defendant applied for credit with G.E Capital.  Even credit cards applied for at the register require a signature on the keypad. I deny This det

 

8 & 11-14 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment. MCR 2.11. Under MCL 440.9406, Midland did not prove the chain of assignment from the assignor to the assignee, so the defendant could not termine with 100% certainty that the document is unadulterated.

 

15 & 16 The affidavit presented in this case at bar was made more than ten days before the complaint was filed, and therefore was improperly considered by the trial court as prima facie evidence of indebtedness. The plain language of MCL 600.2145 prohibits a court from assigning prima facie evidentiary weight to such an untimely affidavit. No employee of representative of Midland Funding LLC was present at any contractual relationship that the defendant may or may not have had with GE Capital Bank. Thus they have no personal knowledge of any contractual relationship between the defendant and GE Capital Bank. 

 

This is my affidavit

  1. I am without knowledge or information sufficient to form a belief as to the truth to verify a debt owed to GE Capital Bank, Synchrony Bank and Midland Funding. I deny this allegation.

 

  1. If this is my debt, I,)_l deny that it is still valid.

 

  1.  If it is still valid I, _, deny that the amount in suit is the correct amount of the debt.

 

 

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Here is my draft for Motion to compel arbitration

 

MOTION TO COMPEL ARBITRATION



NOW COMES Defendant, appearing Pro Se for its Motion to Compel Arbitration and as grounds thereto states the following:

 

1. That on or about June 7, 2018 Plaintiff filed its Complaint against Defendant.

 

2. Defendant sent a letter via certified mail/ hand delivered to Plaintiff's attorney on ____________, 2018, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

 

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

 

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

 

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

 

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

 

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

 

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

 

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

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@gg2008It's impossible to know if this FIRST AMENDED ANSWER is correct without seeing the Complaint. IANAL. I don't think this draft is sufficient. Where is your AFFIRMATIVE DEFENSE section where an agreement to arbitrate is a bar to their claim? As Clydesmom told you, no signed contract is needed to bring suit. Use of a credit card indicates acceptance of the contract's terms. You respond to an Complaint allegation with one of the accepted responses below. A denial requires some explanation of what you'll rely on to support the denial. You don't argue your case in your answer or tell the judge what s/he can properly consider. 

1 hour ago, gg2008 said:

5 & 9 Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment., and therefore denies this allegation. 

Rule 2.111 General Rules of Pleading

(C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must

(1) state an explicit admission or denial;

(2) plead no contest; or

(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.

(D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

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@gg2008 I don't think you understand the role/purpose of an affidavit. (IANAL) An affidavit is a written statement of facts in paragraph form, based upon your own personal knowledge, sworn to and signed by you before a notary public. In other words, when you sign an affidavit, you’re simply attesting, under law, that you swear a statement written in the affidavit is true. An affidavit is like court testimony; you’re under oath, but you’re on paper. An affidavit submitted to deny an account stated (under MCL 600. 2145) has the additional requirement that you deny you owe the stated amount, deny you owe it to the plaintiff, and/or state a different amount owed, if applicable. 

This draft needs work. 

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An affidavit that is also used for a motion to compel arbitration must comply with MCR 2.119(B)(1)(2):

Rule 2.119 Motion Practice
(A) Form of Motions.

(1) An application to the court for an order in a pending action must be by motion. Unless made during a hearing or trial, a motion must

(a) be in writing,

(b) state with particularity the grounds and authority on which it is based,

(c) state the relief or order sought, and

(d) be signed by the party or attorney as provided in MCR 2.114.

(2) A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C) regarding citation of unpublished Court of Appeals opinions. Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits. Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller than 12-point type. A copy of a motion or response (including brief) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked judge's copy on the cover sheet; that notation may be handwritten.

(3) A motion and notice of the hearing on it may be combined in the same document.

(4) If a contested motion is filed after rejection of a proposed order under subrule (D), a copy of the rejected order and an affidavit establishing the rejection must be filed with the motion.

(B) Form of Affidavits.

(1) If an affidavit is filed in support of or in opposition to a motion, it must:

(a) be made on personal knowledge;

(b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and

(c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.

(2) Sworn or certified copies of all papers or parts of papers referred to in an affidavit must be attached to the affidavit unless the papers or copies:

(a) have already been filed in the action;

(b) are matters of public record in the county in which the action is pending;

(c) are in the possession of the adverse party, and this fact is stated in the affidavit or the motion; or

(d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavi

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@gg2008 Did you ever file a dispute on your Equifax, Experian, or TransUnion reports on this account? If yes, you could include a paragraph stating those facts. I am not a lawyer. Here is a suggested draft of an affidavit with some required language, so please read it carefully:

<<Court Case Heading Here>>

AFFIDAVIT OF gg2008

     NOW COMES Defendant in Pro Per, gg2008, whose residence is xxxxx, MI 48xxx, certifies and says:

1.  I am a resident of the State of Michigan, Oakland County, and I am a competent person over 18 years of age. This is affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.

2.  I deny Plaintiff's statement of account served upon me on XXXX, 2018.

3.  I deny I am justly indebted to Plaintiff in the amount of $2380.13.

4.  Plaintiff never extended credit to me.

5.  There have been no transactions or course of business dealings between Plaintiff and me.

6.  The Cardmember Agreement (See Plaintiff's Exhibit D, attached.) contains a binding arbitration clause upon the parties. 

7. I sent a letter via certified mail#xxxxx/ hand delivered to Plaintiff's attorney on ________, 2018, and received on XXXXX, 2018, electing arbitration with JAMS, as per the contract, and requesting dismissal of this case. Attached is a true and correct copy of the arbitration election letter marked as Defendant's Exhibit A.   

8.  As of November XX, 2018, I have had no response from Plaintiff to my election of arbitration in JAMS to settle the disputes of this alleged account. 

 

I certify under penalty of perjury that the foregoing statements are true and correct. 

Dated: November ___, 2018       _________________________(gg2008's signature)

                                                    gg2008 full name

STATE OF MICHIGAN

COUNTY OF OAKLAND

Signed and sworn to (or affirmed) before me on:____________

My commission expires on:___________

(seal)                                                                     _________________(Notary's signature)

                                                                             Notary Public

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@gg2008 Here is a recent Michigan MTC that was submitted in lieu of an Answer. This poster, CandyCLC, used an adapted version of this motion in another lawsuit, and the judge granted her motion. Since you are filing an amended Answer, your motion would not include the "in lieu of an answer" language in red and those grounds supporting that. Citations of Michigan Court Rules (MCR), the FAA, Mich. Uniform Arb Act, US Supreme Court rulings and Michigan Court rulings are what as known as "grounds and authority," which are required to be included in your motion.  Obviously, you would need to substitute your information and contract's specific language.

 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION, IN LIEU OF AN ANSWER

 

      NOW COMES CandyCLC, Defendant appearing pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Credit One Bank, N.A. Cardholder Agreement, (the "Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681-1713, as grounds and authority.  Pursuant to MCR 2.108(A)(1) and MCR 2.111(F)(2), Defendant pro se is filing this Motion in lieu of filing an Answer and states the following:

     1.  On March 16, 2018, Defendant was personally served with the Summons and Complaint in the above-captioned matter. Plaintiff claims it is an assignee of Defendant's account with Credit One Bank, N.A., and seeks to collect an account stated balance. None of the documents referred to in the Complaint were attached as exhibits. 

     2.  Defendant obtained a copy of the applicable 2016 Credit One Bank, N.A. Cardholder Agreement, (the "Agreement"), from the Consumer Financial Protection Bureau (CFPB) database at https://www.consumerfinance.gov/credit-cards/agreements/. Under Section 204 of the Credit CARD Act of 2009, Credit One Bank, N.A. is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached to the Affidavit of  CandyCLC filed and served herewith as Exhibit A, and incorporated herein by reference. 

     3.  Defendant sent a letter via USPS certified mail to Plaintiff's attorney, delivered on March 26, 2018, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration. True copies of the written election notice and the signed USPS return receipt are attached to the Affidavit of CandyCLC filed and served as Exhibit B. Defendant received no response from Plaintiff to her arbitration election notice prior to the filing of this Motion. 

     4.  In lieu of filing an answer to Plaintiff's Complaint, Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Agreement (Exhibit A), pursuant to MCR 2.108(A), 2.108(B), 2.116(C)(7), and 2.116(D)(2). "[D]efendants are entitled to file their motion to dismiss in lieu of filing an answer to plaintiffs' complaint." See Huntington Nat'l Bank v Ristich, 292 Mich App 376, 387-388; 808 NW2d 518 (2011); DeCaminada v Coopers & Lybrand, LLP, 232 Mich App 492, 494-496; 591 NW2d 364-367 (1998).

     5.  The parties are bound by the Cardholder Agreement. The Agreement states, "Either you or we may, without the other's consent, require that any controversy or dispute between you and us (all of which are called “Claims”) be submitted to mandatory, binding arbitration. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the State law governing the Card Agreement." ( Exhibit A, page 9  paragraph 5)

      6.  The Federal Arbitration Act (FAA) 9 USC, §2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract.”

     7.  The Supreme Court emphasized in its decision in AT&T Mobility L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " Id.

     8.  The Arbitration Agreement further states, in pertinent part, under Claims Covered:, "Any questions about what Claims are subject to arbitration shall be resolved by interpreting this Arbitration Agreement in the broadest way the law will allow it to be enforced." "Claims subject to arbitration include not only Claims made directly by you..." but also include, "Claims that relate directly to us, a parent company, affiliated company, and any predecessors and successors (and employees, officers, and directors of all of these entities)." (Exhibit A, page 6 paragraph 5) 

     9.  The Arbitration Agreement also states in "Enforcement, Finality: You or we may bring an action, including a summary or expedited motion, to compel arbitration of Claims subject to arbitration, or to stay the litigation of any Claims pending arbitration, in any court having jurisdiction. Such action may be brought at any time, even if any such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered." (Exhibit A, page 7 paragraph 5)

     10.  The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580.  Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established.  There is a written arbitration clause that is part of a valid written contract.  The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Agreement's "Enforcement" section.  (Exhibit A, page 7 paragraph 5)

     11.  The attorney for Plaintiff was contacted for concurrence with the relief sought in this Motion. A copy of the Proposed Order that accompanies this Motion was served by FAX on March 28, 2018, and by USPS first class mail.  Defendant received no response from Plaintiff. True copies of the FAX cover sheet and transmission record are attached to the Affidavit of CandyCLC filed and served as Exhibit C.

     WHEREFORE, for the foregoing reasons, Defendant respectfully requests that this Honorable Court grant this Motion to compel Plaintiff to arbitrate all of its claims alleged in the Complaint per the terms of the Arbitration Agreement and dismiss this action.  In the alternative, the Court should order that this action be stayed pending completion of private contractual arbitration in JAMS.

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On 11/5/2018 at 12:12 PM, Brotherskeeper said:

@gg2008It's impossible to know if this FIRST AMENDED ANSWER is correct without seeing the Complaint. IANAL. I don't think this draft is sufficient. Where is your AFFIRMATIVE DEFENSE section where an agreement to arbitrate is a bar to their claim? As Clydesmom told you, no signed contract is needed to bring suit. Use of a credit card indicates acceptance of the contract's terms. You respond to an Complaint allegation with one of the accepted responses below. A denial requires some explanation of what you'll rely on to support the denial. You don't argue your case in your answer or tell the judge what s/he can properly consider. 

Rule 2.111 General Rules of Pleading

(C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must

(1) state an explicit admission or denial;

(2) plead no contest; or

(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.

(D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

Here is the original complaint. I apologize for just now posting. I hadn’t to get the files from court as I do not live in the same state as the case is happening in. D4EB7591-82B4-43AD-8BF5-95E2ED6CE235.thumb.jpeg.9c9b9ffa15639f3b42f7704abbe69c78.jpeg

039277DD-5738-4EA1-8098-951AA0054790.jpeg

02687C29-8F53-4A0D-B414-D48588E3E90E.jpeg

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13 hours ago, gg2008 said:

Here is the original complaint. I apologize for just now posting. I hadn’t to get the files from court as I do not live in the same state as the case is happening

@gg2008 Please explain how you're being sued in Michigan when you do not live there. @Harry Seaward or @BV80 any advice?

Rule 2.116 Summary Disposition

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the same claim.

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(8) The opposing party has failed to state a claim on which relief can be granted.

(9) The opposing party has failed to state a valid defense to the claim asserted against him or her.

(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(1) The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

Edited by Brotherskeeper
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6 minutes ago, Brotherskeeper said:

@gg2008 Please explain how you're being sued in Michigan when you do not live there. @Harry Seaward or @BV80 any advice?

Rule 2.116 Summary Disposition

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:

(1) The court lacks jurisdiction over the person or property.

(2) The process issued in the action was insufficient.

(3) The service of process was insufficient.

(4) The court lacks jurisdiction of the subject matter.

(5) The party asserting the claim lacks the legal capacity to sue.

(6) Another action has been initiated between the same parties involving the same claim.

(7) Entry of judgment, dismissal of the action, or other relief is appropriate because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate or to litigate in a different forum, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action.

(8) The opposing party has failed to state a claim on which relief can be granted.

(9) The opposing party has failed to state a valid defense to the claim asserted against him or her.

(10) Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law.

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:

(1) The grounds listed in subrule (C)(1), (2), and (3) must be raised in a party's first motion under this rule or in the party's responsive pleading, whichever is filed first, or they are waived.

I originally lived in Michigan when the complaint was filed. I now live  in Wisconsin.  

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19 minutes ago, Brotherskeeper said:

Please explain how you're being sued in Michigan when you do not live there

The OP beat me to it.

 

13 minutes ago, gg2008 said:

I originally lived in Michigan when the complaint was filed. I now live  in Wisconsin

 

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12 minutes ago, BV80 said:

The OP beat me to it.

 

26 minutes ago, gg2008 said:

I originally lived in Michigan when the complaint was filed. I now live  in Wisconsin

 

@BV80Any advice on what OP should do? (I'd consult an attorney if I were in her shoes.) OP is filing an amended answer (in Michigan) very soon, along with a motion to compel arb. If OP doesn't raise the jurisdiction issue, she'll waive it. 

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17 minutes ago, Brotherskeeper said:

@BV80Any advice on what OP should do? (I'd consult an attorney if I were in her shoes.) OP is filing an amended answer (in Michigan) very soon, along with a motion to compel arb. If OP doesn't raise the jurisdiction issue, she'll waive it. 

I have consulted with an attorney. They told me to go with the affidavit issue. 

 

But through the advice of  this  forum we thought to would be best to compel arbitration  with an amended answer and affidavit  

 

They also would not take my case because the dollar amount was so small. 

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30 minutes ago, Brotherskeeper said:

@BV80Any advice on what OP should do? (I'd consult an attorney if I were in her shoes.) OP is filing an amended answer (in Michigan) very soon, along with a motion to compel arb. If OP doesn't raise the jurisdiction issue, she'll waive it. 

Wouldn’t the OP need to motion for a change of venue?

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4 hours ago, gg2008 said:

I have consulted with an attorney. They told me to go with the affidavit issue. 

 

But through the advice of  this  forum we thought to would be best to compel arbitration  with an amended answer and affidavit  

 

They also would not take my case because the dollar amount was so small. 

What did the attorney say about the fact that you moved to Wisconsin after being served? Or was the consult prior to your move? 

Are you traveling back to Michigan for court dates or appearing telephonically? 

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25 minutes ago, gg2008 said:

The consult occurred after I moved. I have been traveling back and forth and it has been costly. 

What exactly has occurred with the lawsuit so far?

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1 hour ago, BV80 said:

What exactly has occurred with the lawsuit so far?

I was sued on an accounted stated claim. I did not file a good enough answer to the original complaint. I did not submit an affidavit in the original answer. 

 

I filed a motion to leave for amended answer.  It was granted. I have until Monday to file my amended answer. Discovery had occurred  

In the mean time I have moved to a different state. 

 

My plan is to file a motion to compel arbitration. 

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1 hour ago, gg2008 said:

I was sued on an accounted stated claim. I did not file a good enough answer to the original complaint. I did not submit an affidavit in the original answer. 

 

I filed a motion to leave for amended answer.  It was granted. I have until Monday to file my amended answer. Discovery had occurred  

In the mean time I have moved to a different state. 

 

My plan is to file a motion to compel arbitration. 

Why did you not request a change of venue?   

Perhaps @fisthardcheese will respond in regard to filing a MTC when the defendant resides in a state other than where the lawsuit was filed.

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13 hours ago, gg2008 said:

I have until Monday to file my amended answer

How do you file? Electronically?

13 hours ago, gg2008 said:

Discovery had occurred  

When exactly did you receive the cardmember agreement?  With the Complaint, as result of a discovery request, or as an exhibit to their motion for summary disposition? Timing on when you first learned about the agreement's arb clause may become an issue.

13 hours ago, gg2008 said:

In the mean time I have moved to a different state. 

Is this new state your permanent or temporary residence? Does the ID you'll use to show the notary for your affidavit have a Michigan or Wisconsin address? In other words, the sworn affidavit you're going to submit has to contain accurate information. 

Did the attorney you consulted advise anything about the fact that you moved mid-suit?

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Quote

 

I will send it in overnight mail or have a family member hand deliver it, depending on what I come up with today from this forum.

 

I received the card member agreement as an exhibit to their motion for summary disposition. That is when I learned of arbitration and filed a motion of an amended answer as a response to their summary judgement motion.

This new state is my permanent residence. The affidavit im going to submit will have my Milwaukee address. 

The attorney I consulted did not mention me moving because I did not mention. The first time I heard about motioning to change venue was two days ago through this forum. During court the judge did ask me was I going to file a motion. I am wondering if she was talking about changing the venue. 

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2 hours ago, gg2008 said:

I received the card member agreement as an exhibit to their motion for summary disposition. That is when I learned of arbitration and filed a motion of an amended answer as a response to their summary judgement motion.

This is good news. You didn't delay asserting your right to arbitrate the disputes; you sought arbitration as soon as you learned of your right to do so when you received their exhibit on such and such date. This fact should be included in your affidavit and in your motion to compel. 

 

2 hours ago, gg2008 said:

The attorney I consulted did not mention me moving because I did not mention. The first time I heard about motioning to change venue was two days ago through this forum. During court the judge did ask me was I going to file a motion. I am wondering if she was talking about changing the venue. 

IANAL. I posted the rule ((MCR 2.116(C)(1)) that states that you waive your right if don't assert it in your amended answer (first responsive pleading.) If I were in your shoes, I'd think about including your move as an affirmative defense in case you need it, and maybe also in your motion to compel as another ground for dismissal.  I hope Fisthardcheese weighs in. 

IMO, It's going to be very important for you to post your revised drafts so that you correct the previous mistakes and make a strong, persuasive argument in your motion papers. I hope you've had a chance to read the exemplars I posted. 

 

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I will post my revised drafts later on tonight when I am off of work! Thank you so much for you input 

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