gg2008

Motion for Summary Disposition Midland Funding

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4 hours ago, gg2008 said:

4.  6. 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)

 

@gg2008 The "et seq" is italicized. Again, cardholder, cardmember  card agreement are used throughtout this cobbled motion. Use the correct name of the agreement as shown on the copy plaintiff provided to be accurate and consistent. 

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4 hours ago, gg2008 said:

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.”

 

    6. 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.

 

@gg2008 The correct case citation has the party names, "supra" and "Id"  italicized. I've shown this in red text to highlight the needed corrections. Obviously, you would not use red text in your motion. 

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4 hours ago, gg2008 said:

78. 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." (Pl.'s Ex.D, Page 5)

 

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4 hours ago, gg2008 said:

109. 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.  (Pl.'s Ex. D, page 5)

@gg2008 Again, proper citation is italicized, as shown in red. You can abbreviate exhibit info as shown. 

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5 hours ago, gg2008 said:

 1110. 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 Defendant's Exhibit B.

@gg2008 It's important to specify whether an exhibit is defendant's or plaintiff's when using the same alphabetic notations. 

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

 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)." (Pl.'s Ex. D, page 5)

@gg2008 You eliminated this paragraph from your recent draft. I'm assuming you did so because fisthardcheese said that he thought your motion was too long. Fair point; however, Michigan rules require a brief to be filed with a motion that presents a matter of law. There is a case cite that ruled that a motion need not be denied for failure to file an attached brief, if the motion's grounds and authority appear in the motion body.  This is the reason CandyCLC's motion was so long, with supporting Michigan case cites.

IANAL . Does your agreement contain this language in #8 above or similar? This paragraph achieves 2 objectives: 1.) whether claims to the account are covered by the agreement should be interpreted in the broadest terms possible by the court, and that plaintiff is bound as a "successor" (in interest) by assignment (as assignee) to the same duties as the original party to the agreement (GE Capital Retail Bank/WalMart). 

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<<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:  

     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.

     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 5), incorporated herein by reference.

      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).

     4. 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.

     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).

     6. 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).

      7. 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.”

     8. 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.

     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." (Pl.'s Ex.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.  (Pl.'s Ex. 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 Defendant's 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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@gg2008 Proofread carefully to make certain your dates, Exhibit A, B are correct, and that the quoted contract language is actually from your agreement. These copied and  pasted sections of other posters' motions can create confusion (and dings to your credibility in court) if you aren't careful. 

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On 11/20/2018 at 11:01 AM, Brotherskeeper said:

 

I will not be including this paragraph because my paragraph has no enforcement finality clause. 

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1 hour ago, gg2008 said:

I will not be including this paragraph because my paragraph has no enforcement finality clause. 

Does the arb provision of the agreement contain any language like this?:

On 11/20/2018 at 12:01 PM, Brotherskeeper said:

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." (Pl.'s Ex.D, Page 5)

The above clause or something similar is important because it refutes plaintiff's possible opposition to the MTC arb as being too late since you've been in court so long. 

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19 minutes ago, Brotherskeeper said:

Does the arb provision of the agreement contain any language like this?:

The above clause or something similar is important because it refutes plaintiff's possible opposition to the MTC arb as being too late since you've been in court so long. 

 
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." (Pl.'s Ex.D, Page 5)
 
it does include the above language 

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Hey guys! I know its been a while.The judge was on a leave of absence. I was granted my motion to compel arbitration. Thank you for all of your help! The judge says that I need to start working on it now. Any advice?

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34 minutes ago, gg2008 said:

I was granted my motion to compel arbitration. Thank you for all of your help! The judge says that I need to start working on it now. Any advice?

Fantastic!! Did you read fisthardcheese's pinned arb thread? 

 

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On 3/15/2019 at 11:31 AM, gg2008 said:

Hey guys! I know its been a while.The judge was on a leave of absence. I was granted my motion to compel arbitration. Thank you for all of your help! The judge says that I need to start working on it now. Any advice?

File the arbitration demand.

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On 3/18/2019 at 10:54 AM, fisthardcheese said:

File the arbitration demand.

Before I had a chance to file the arbitration demand I was sent a letter for "stipulation to dismiss". I feel like something is fishy about this. 

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50 minutes ago, gg2008 said:
 

Before I had a chance to file the arbitration demand I was sent a letter for "stipulation to dismiss". I feel like something is fishy about this. 

Why fishy? Please post the letter with personal info redacted. 

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3 hours ago, gg2008 said:

Before I had a chance to file the arbitration demand I was sent a letter for "stipulation to dismiss". I feel like something is fishy about this. 

What did it say?

I would agree to a stipulated dismissal with prejudice in a heartbeat.

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3 hours ago, fisthardcheese said:

What did it say?

I would agree to a stipulated dismissal with prejudice in a heartbeat.

I question the without prejudice piece but they said you only can dismiss a case with prejudice if it has been to trial. Looking up information in that now. 

FFF6EF5D-AFDF-43EC-83AD-86F490AC8BE6.jpeg

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Here are the court rules for Voluntary Dismissal:

Rule 2.504 Dismissal of Actions

(A) Voluntary Dismissal; Effect.

(1) By Plaintiff; by Stipulation. Subject to the provisions of MCR 2.420 and MCR 3.501(E), an action may be dismissed by the plaintiff without an order of the court and on the payment of costs

(a) by filing a notice of dismissal before service by the adverse party of an answer or of a motion under MCR 2.116, whichever first occurs; or

(b) by filing a stipulation of dismissal signed by all the parties.

Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a dismissal under subrule (A)(1)(a) operates as an adjudication on the merits when filed by a plaintiff who has previously dismissed an action in any court based on or including the same claim.

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No, they are yanking your chain.

Tell them you do not agree.  Tell them you will stipulate to a dismissal with prejudice otherwise you will be filing the arbitration demand by the end of this week.

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Hey Guys!

 

They refused to sign it with prejudice. The lawyer informed me that he proceeded to dismiss the case without me. ( I don't know what that means).  I will still file arbitration. 

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6 hours ago, gg2008 said:

Hey Guys!

 

They refused to sign it with prejudice. The lawyer informed me that he proceeded to dismiss the case without me. ( I don't know what that means).  I will still file arbitration. 

Check your court records and see if he actually did this.  If there is a motion to dismiss pending, I would file an objection immediately.  I would notify the judge that the Plaintiff did not accept your stipulated dismissal agreement and that their unilateral motion to dismiss is improper and NOT stipulated to by the Defendant.  I would lay out that you were in talks with the Plaintiff to attempt to come to terms on a stipulated agreement, however, the Plaintiff decided on their own to file their improper dismissal instead of working out a stipulation agreement.  I would remind the court that there is a stay in place and an order to compel arbitration in this case, and that by Plaintiff's motion without stipulation, they are in violation of the court's order.  I would then state that given that the Plaintiff would like to dispatch of this case, I am willing to agree to a dismissal with prejudice and for my costs to be awarded, or in the alternative, for the stay to remain in place and ask that the Plaintiff follow Defendant into arbitration as previously ordered.

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I will follow this. I will check with the court on monday.

 

in the mean time im supposed to have the arbitration filed by tuesday. I delayed this because i thought we would settle. 

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5 hours ago, gg2008 said:

I will follow this. I will check with the court on monday.

 

in the mean time im supposed to have the arbitration filed by tuesday. I delayed this because i thought we would settle. 

File the AAA case today through their website.   Do NOT be the party that is in violation of the court order.  Let THEM be that party only. 

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