gg2008

Motion for Summary Disposition Midland Funding

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1 minute ago, fisthardcheese said:

I also think the MTC is way too wordy.  I do not like including where you obtained the card agreement from.  I would just state that the card agreement that is the basis of Plaintiff's allegations contains an arbitration clause and that's all that needs to be said about it UNLESS they attempt to challenge the agreement in their response.

@fisthardcheese OP just copied an example of another Michigan poster's motion! The cardmember agreement in OP's case was just provided as an exhibit to a summary judgment motion. Under Michigan rules, a MTC arb must have a memorandum attached to the motion unless the grounds and authority are stated in the motion. 

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1 minute ago, gg2008 said:

I will look at it and condense it some. And I agree with the language for the credit card agreement. I will repost soon. 

There is a sample MTC in the link in my signature that is more condensed.

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1 minute ago, Brotherskeeper said:

@fisthardcheese OP just copied an example of another Michigan poster's motion! The cardmember agreement in OP's case was just provided as an exhibit to a summary judgment motion. Under Michigan rules, a MTC arb must have a memorandum attached to the motion unless the grounds and authority are stated in the motion. 

Grounds and authority are fine and necessary.  If the Plaintiff has already introduced the card agreement as evidence, then it only needs to be pointed to as Plaintiff's exhibit "X" with a short quote of the relevant part showing arbitration is the proper dispute method.

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@fisthardcheese OP received a summary disposition motion that has a scheduled hearing date. Do you think OP should still file a motion opposition response in addition to the MTC, which she believes will be heard at that same hearing, in case her MTC is denied? 

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4 minutes ago, Brotherskeeper said:

@fisthardcheese OP received a summary disposition motion that has a scheduled hearing date. Do you think OP should still file a motion opposition response in addition to the MTC, which she believes will be heard at that same hearing, in case her MTC is denied? 

Yes.  And at the hearing, I would ask the judge if the MTC could be heard first because it speaks to jurisdiction and could potentially render the MSJ moot.

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On 11/9/2018 at 11:36 AM, 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.

@gg2008 An amended answer is not a response in opposition to their motion for summary disposition. That is a separate document(s) you submit that must admit or rebut each assertion in the motion. 

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  • Member
  • Brotherskeeper
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@justiceforall3

 

I found a few typos and some case cite fixes. Good luck!

Justiceforall3_Updated.docx

@gg2008 Here's an example of a Michigan poster's MSD opposition response from 2014. He also filed an amended answer (and an amended and supplemental affidavits!) to cure inadvertent admissions in his first answer. He did not consider arbitration, so that wasn't a factor in his case or mentioned in his opposition response.

 

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1 hour ago, Brotherskeeper said:

 

  • Member
  • Brotherskeeper
  • Members
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  • 1,933 posts
  • Location: Michigan

@justiceforall3

 

I found a few typos and some case cite fixes. Good luck!

Justiceforall3_Updated.docx

@gg2008 Here's an example of a Michigan poster's MSD opposition response from 2014. He also filed an amended answer (and an amended and supplemental affidavits!) to cure inadvertent admissions in his first answer. He did not consider arbitration, so that wasn't a factor in his case or mentioned in his opposition response.

 

I will work on this , this week and submit my drafts to you guys this weekend. I will be submitting the amended answer, affidavit by hand tomorrow. We have worked on those two things this weekend.

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@gg2008 

1.  Was there a separate motion page or section with short, numbered paragraphs that includes the motion's grounds ((ex. MCR 2.116(C)(9), (10)) that was attached to the MSD Brief?

2.  One the elements of an account stated claim is, a.) the failure to dispute the account after, b.) receiving the demand for payment of the balance claimed owing and due. You mentioned you disputed this account with TransUnion, so it appears that you did dispute this account. Can you explain when you filed this dispute? Was it before or after the lawsuit was filed? Does the report list the account as disputed by consumer? Does the report show Midland accessed the report prior to filing suit and would've seen the disputed  notation? 

In the exhibits the JDB submitted with the MSD, is there a Walmart cc statement that asks for the amount claimed in the suit? If so, does the statement ask for a minimum payment amount?

 

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@gg2008  IANAL. IMO As a threshold matter, even before standing, etc., your contractual right to have the disputes of this account heard in an arbitral forum (i.e. JAMS) rather than court is a material fact. Since plaintiff provided the cardmember agreement it claim binds you and plaintiff's assignor as an exhibit to the MSD, it is undisputed evidence of this material fact. Plaintiff's exhibit is also undisputed evidence to support your amended Answer's affirmative defense of an agreement to arbitrate. If the judge agrees, the JDB's motion for summary disposition would be denied. If I were you, to be safe, I would include this argument first in your response in opposition to their MSD. Again, I'm not a lawyer. Hopefully, your MTC arb will be heard first and make the MSD moot. 

How to Defeat a Motion for Summary Judgment

"Find the one fact that if disputed with competent admissible evidence would defeat the motion. Then, offer evidence to dispute the fact. Make sure to focus the court on the key dispute in the record, and be sure that your evidence is admissible, and that the fact in dispute is material, not trivial. In other words, it should be a fact that if found your way by a jury, it would turn the case."

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7 minutes ago, fisthardcheese said:

OP, you are getting way to distracted with other issues within this thread.  You have 2 issues ONLY that the court needs to hear:

1.  Opposition to Summary Judgement, which should refute EACH AND EVERY point they made in their summary judgement IN ADDITION to the fact that arbitration has been demanded IN WRITING by the defendant and that the defendant has a pending MTC before the court which is a genuine dispute regarding the venue of this matter.

 

@fisthardcheese made this point much more succinctly in another thread. xkingx

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On 11/12/2018 at 2:05 PM, gg2008 said:

 1. In June of  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 GE Capitial Bank., and seeks to collect an account stated balance. The documents referred to in the Complaint were not attached as exhibits in complete form.

@gg2008 In a very early post of yours you stated you were served on June 19. Some documents were attached as exhibits to the Complaint, but (a.) not a copy of the Cardmember Agreement, right? This fact is important because you could not have known about your right to elect arbitration or asserted it until you read the arb section of the alleged governing cardmember agreement, (b.) only provided by them as Exhibit D to their summary disposition motion on XXXX date. Your position is that learning of your right to arbitrate necessitated (c.) your requesting and filing an amended answer to include arb as an Affirmative Defense, followed by your motion to compel arb. There was no delay by you. Requesting to file an Amended Answer to include arb, filing it, (d.) notifying Plaintiff by CMRRR letter of arb election in JAMS, and then quickly filing a MTC arb demonstrate no delay on your part. I believe it would be prudent to include the facts supporting (a.) through (d.) in your motion to head off any argument that you delayed this for months. (IANAL) For example, this hits (a.) without muddying the waters with your mention of account stated, which is actually Count II of the Complaint:

     1.  Defendant was personally served with the Summons and Complaint in the above-captioned matter on or about June 19, 2018. Plaintiff alleges it is an assignee of Defendant's credit card account with GE Capitial Retail Bank/WalMart. No copy of the Cardmember Agreement of the alleged account referred to in the Complaint or in the Affidavit of Brittany Sedahl was attached.

     

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On 11/12/2018 at 2:05 PM, gg2008 said:

2. Defendant obtained a copy of the applicable 2013 GE Capital 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, GE Capital 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 gg2008 filed and served herewith as Exhibit A, and incorporated herein by reference.

@gg2008 You were lucky enough to have plaintiff provide the cardmember agreement it claims applies to your account as an exhibit to the MSD. IANAL. This means Midland can't dispute it's own exhibit, so the (material) fact of the contract's binding arbitration provision is undisputed. 

     2.  On or about October xx, 2018, Defendant received Plaintiff's Motion for Summary Disposition. Attached as Plaintiff's Exhibit D is a copy of a "Cardmember Agreement"  referred to in Plaintiff's motion. This Cardmember Agreement contains a binding Arbitration provision (Pl.'s Ex. D, page x), incorporated herein by reference.

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18 hours ago, Brotherskeeper said:

@gg2008 You were lucky enough to have plaintiff provide the cardmember agreement it claims applies to your account as an exhibit to the MSD. IANAL. This means Midland can't dispute it's own exhibit, so the (material) fact of the contract's binding arbitration provision is undisputed. 

     2.  On or about October xx, 2018, Defendant received Plaintiff's Motion for Summary Disposition. Attached as Plaintiff's Exhibit D is a copy of a "Cardmember Agreement"  referred to in Plaintiff's motion. This Cardmember Agreement contains a binding Arbitration provision (Pl.'s Ex. D, page x), incorporated herein by reference.

Are you suggesting that I use this for the motion to compel? I still have to reply to the summary disposition. I am working on it right now

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Also the motion for summary disposition is not number and I cannot respond to numbered paragraphs. Should I just submit my response leading with my arbitration argument?

 

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16 minutes ago, gg2008 said:

Also the motion for summary disposition is not number and I cannot respond to numbered paragraphs.

Is there a page in front of the MSD page titled "Brief"  you posted in your first thread? 

17 minutes ago, gg2008 said:

Should I just submit my response leading with my arbitration argument?

Yes, as we've said the arbitration argument is a threshold issue. Please reread page 5 of your thread. 

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On 11/18/2018 at 9:29 AM, Brotherskeeper said:

Is there a page in front of the MSD page titled "Brief"  you posted in your first thread? 

Yes, as we've said the arbitration argument is a threshold issue. Please reread page 5 of your thread. 

Yes! There is a Brief title. I also have the recommended template for the response to summary disposition. I am woking on it now

 

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I would like to submit this today. I have taken out the information that didn't directly match my card agreement. Let me know what you think.

 

 

Defendant states the following:

 

    1. On or about June 19  of 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 GE Capitial Bank., and seeks to collect an account stated balance. The documents referred to in the Complaint were not attached as exhibits in complete form.

 

    2. Defendant sent a letter via USPS certified mail to Plaintiff's attorney,  on  November 10, 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 gg2008 filed and served as Exhibit A. Defendant received no response from Plaintiff to her arbitration election notice prior to the filing of this Motion.

 

    3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Agreement , Plaintiff's (Exhibit D, Page 5), pursuant to MCR 2.116(C)(7), and 2.116(D)(2).

 

    4. The parties are bound by the Cardholder Agreement. The Agreement states, "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Wal-Mart Stores, Inc. if it relates to your account, " 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. (Plaintiffs Exhibit D, page 5  section 2)

 

 

 

 

     5. 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.”

 

    6. 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.

 
 

    7. 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 D, Page 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.  (Plaintiff's Exhibit D Page 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 certified mail on November 10, 2018, and by USPS first class mail.  Defendant received no response from Plaintiff. True copies of the transmission record are attached to the Affidavit of gg208 l filed and served as Exhibit B.

 

    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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3 hours ago, gg2008 said:

Defendant states the following:

 

    1. On or about June 19  of 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 GE Capitial Bank., and seeks to collect an account stated balance. The documents referred to in the Complaint were not attached as exhibits in complete form.

@gg2008 I've posted the rules that state you must included the grounds and authority your MTC is based on. Look these up for yourself to verify. Use the correct GE Capital Retail Bank/WalMart name and check to see if the cc agreement title is "Cardholder" or "Cardmember." This is important if you want to prevail and appear to know what you're doing to the judge. IANAL. My suggestions:

<<Court Caption Heading>>

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

 

      NOW COMES  Defendant Pro Per, gg2008, and hereby moves this Honorable Court to compel private contractual arbitration based on the GE Capital Retail Bank/WalMart.Cardmember 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 and states the following:  

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On 11/20/2018 at 7:11 AM, gg2008 said:

1. On or about June 19  of 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 GE Capitial Bank., and seeks to collect an account stated balance. The documents referred to in the Complaint were not attached as exhibits in complete form.

@gg2008 Earlier I posted these changes to your first draft and my reasoning for them. IMO the language below states just what you need without muddying the waters on an account stated claim. 

1.  Defendant was personally served with the Summons and Complaint in the above-captioned matter on or about June 19, 2018. Plaintiff alleges it is an assignee of Defendant's credit card account with GE Capitial Retail Bank/WalMart. No copy of the Cardmember Agreement of the alleged account referred to in the Complaint or in the Affidavit of Brittany Sedahl was attached.

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On 11/17/2018 at 3:17 PM, Brotherskeeper said:

g2008 You were lucky enough to have plaintiff provide the cardmember agreement it claims applies to your account as an exhibit to the MSD. IANAL. This means Midland can't dispute it's own exhibit, so the (material) fact of the contract's binding arbitration provision is undisputed. 

     2.  On or about October xx, 2018, Defendant received Plaintiff's Motion for Summary Disposition. Attached as Plaintiff's Exhibit D is a copy of a "Cardmember Agreement"  referred to in Plaintiff's motion. This Cardmember Agreement contains a binding Arbitration provision (Pl.'s Ex. D, page x), incorporated herein by reference.

@gg2008 I still think it's important to include that you got the agreement from plaintiff and when. The reason is to show it's undisputed. Also that you took action to elect arb as soon as you discovered the arb section, so that you can ward off their objection due to delay. I recommend you use the language above and fill in the dates. IANAL  

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@gg2008 If I were in your shoes, I would include this info as #3. This demonstrates a.) your intention to invoke the arb clause, and 2.) that you're following the both the court rules for pleading and informing Plaintiff (in writing) of arb as your affirmative defense. 

     3.  On XXX, XX, 2018, Defendant's request for leave to file an amended answer was granted by this Court. On November XX, 2018, Defendant's First Amended Answer and Affirmative Defenses was filed and served, along with Defendant's affidavit.  Affirmative Defense I asserts that the existence of a binding agreement to arbitrate disputes bars Plaintiff's claims. (Def.'s First Amended Ans., Aff. Def. I).

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4 hours ago, gg2008 said:

24. Defendant sent a letter via USPS certified mail to Plaintiff's attorney,  on  November 10, 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 gg2008 filed and served as Defendant's Exhibit A. Defendant received no response from Plaintiff to her arbitration election notice prior to the filing of this Motion.

 

 

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4 hours ago, gg2008 said:

3. 5. Defendant moves this court to compel binding Private Contractual Arbitration based on the terms and conditions of the Agreement, (Plaintiff's Exhibit D, page 5), pursuant to MCR 2.116(C)(7), and 2.116(D)(2).

  

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