pierce

Sued By Midland, denied Arbitration?

56 posts in this topic

Make a long story short, I was sued for about 700 dollars by Midland from a debt stemming from Synchrony Bank Care Credit.

In my answer after being served, I asked to initiate arbitration.

Come court date - this afternoon - the lawyer representing Midland met me in a room and negotiated settlement. He wanted full amount. I stated I would pay half, without admitting it was mine, and he said no. I then said as I had stated, I would initiate arbitration as per the Synchrony clause in the card member agreement. He said it was way past that point. Arbitration was no longer an option. Then he said, well let the judge decide.

I told the judge that I wanted to compel Arbitration, and he briefly read the submitted clause. The lawyer for Midland stated to the judge that it was way past the point of arbitration, and it was a stalling tactic, and arbitration is expensive, and the debt is small. He did not believe that at this point arbitration was allowed, and wanted a ruling today.

The judge asked me a few questions - such as where in the arbitration clause it stated that it was mandatory.

He then told me no. He would not grant me the right for arbitration, it seemed too late, and we were already in the court room. Judgement for MIdland 800 with court fees, unless I contested the judgement. I then asked for clarification on timing. If it was too late today, when was the appropriate time? He said he didn't know. And then  (I probably shouldn't have said this) - asked if it was just an arbitrary feeling. I owned the debt per the card agreement, but the other portion of the agreement that supported my position was not. How can only parts of an agreement be binding, isnt it all or nothing? He then replied, are saying I am favoring the Plantiff? I said nothing.

He (the Judge) explained I could have the judgement reviewed - and set a new court date, or have it done without an in person. I would have 10 days to file and pay the fee, or the ruling stands.

I have 10 days - what should I do?

I can't help feeling that I was denied something that was supposed to be enforced? Should I just pay, or fight it?

 

Thank you in advance!

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What do Wisconsin Statutes say about arbitration? Most seem to follow Federal Guidelines, in which case this seems like something you should appeal. Other states, Florida, comes to mind, leave a very small window in which to elect arbitration, or your right is waived - basically saying that you can't choose to arbitrate after participating in litigation.

 

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This was the first scheduled court date in small claims court here in Dane County, Madison Wi.

It was a Care Credit card from Synchrony. Here is the clause that I used:

RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST
DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A
JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING;
(3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.
What claims are subject to arbitration
1. 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 providers that accept the card or program sponsors if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case
in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may
require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or
scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or
argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
3No Class Actions
YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR
ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY
ACCOUNTHOLDER
WHO IS NOT AN
ACCOUNTHOLDER
ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION
WITH
ANY CLAIM YOU HAVE.
If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the
court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or
federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the
right to compel arbitration of any claim brought by such an agency.
How to start an arbitration, and the arbitration process
1.
The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in
the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN:
ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association
(AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018,
www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.
2.
If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration,
which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.
3.
The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of
legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but
may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.
4.
The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator
charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you
prevail on claims you assert against us in an arbitration proceeding which you have commenced.
Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the
FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the
arbitrator’s award.
How to reject this section
You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim. To
reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject
this section. The notice must include your name, address and account number, and must be mailed to Synchrony Bank, P.O. Box 965012,
Orlando, FL 32896-5012. This is the only way you can reject this section.

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You got railroaded. I would definitely be appealing, or asking for review. Whatever they call it there. 

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It probably was a magistrate that made a recommendation for the judge to approve (or reject).

You'll need to oppose the magistrate's recommendation within the time allowed, and if the judge agrees with you the recommendation will not be approved.

In Wisconsin, if the magistrate rules against you, you can automatically appeal to circuit court and try the case ab initio before a real judge.

See prior thread here.

 

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12 hours ago, Pericles said:

It probably was a magistrate that made a recommendation for the judge to approve (or reject).

You'll need to oppose the magistrate's recommendation within the time allowed, and if the judge agrees with you the recommendation will not be approved.

In Wisconsin, if the magistrate rules against you, you can automatically appeal to circuit court and try the case ab initio before a real judge.

See prior thread here.

 

Thank you so much!

I am leaning towards submitting the form for it to be heard by a judge. I called the court and asked a few questions and it is basically a rehearing of the entire case. Nothing that happened with the magistrate will even be discussed, other than the actual judgement. So basically a complete re-do with a judge.

 

Does this mean that I can submit new documents? The first time around I did not submit an official MTC Arb. I just wrote the motion to compel arbitration in my answer. Once a new trial date is set does it seem right to submit a motion to compel arbitration now?

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I would think writing up a proper MTC is something you will need to do, but check your court rules. (I hope you face the same lawyer, next go around! Maybe just me, but I'd take great pleasure sticking it to him - especially after mis-leading the magistrate about your right to arbitrate.)

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Appeal  this.  It was not way past the point of arbitration, if it was the first court date.  While there is a doctrine about waiving arbitration by engaging in litigation, that means going far into the court process, like engaging in discovery.

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On 10/17/2018 at 6:28 PM, pierce said:
What claims are subject to arbitration
1. 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 providers that accept the card or program sponsors if it relates to your account,

How is "demand" defined here? Would merely including:

10 hours ago, pierce said:

The first time around I did not submit an official MTC Arb. I just wrote the motion to compel arbitration in my answer.

in your answer satisfy "make a demand" for arbitration, according to the terms of the agreement?

 

On 10/17/2018 at 6:28 PM, pierce said:
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

Read this language carefully. Your case is in small claims. They won't require you to arbitrate; it doesn't say that you can't require them to arbitrate a case they bring in small claims. They do say they can require you to arbitrate if you respond to their collection suit with a counterclaim of wrongdoing. This means that they can require you to take your claim to arb after they file a lawsuit. They wouldn't consider it "too late" for arb in that case. Why is it now too late for you?

On 10/17/2018 at 6:28 PM, pierce said:
How to start an arbitration, and the arbitration process
1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit.

If you included your intention to compel arbitration in your answer (papers filed in a lawsuit), and your answer was in writing, it appears to me that you satisfied these terms. 

On 10/17/2018 at 6:28 PM, pierce said:
The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association
(AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018,
www.jamsadr.com, (800) 352-5267.

Did you indicate AAA or JAMS in your answer? 

On 10/17/2018 at 6:28 PM, pierce said:
2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration,
which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

 

On 10/17/2018 at 6:28 PM, pierce said:
• Governing Law for Arbitration
This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA.

 

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Tomorrow I will submit the documents to be heard with a new judge. I will also include a MTC Arbitration. I did not include AAA of JAMS. I presume Jams is the way to go?

I also did a quick look over at the documents they sent me.

1. They have an incomplete accounting of the debt. It starts with a balance of 305, but none of the statements before that showing purchases are present.

2. No purchases are ever shown - all of the statements have no new purchases, from the first statement they provided, to the last. Just three payments, and then just fees, all the way to 6/25. When do they have to close the account for non payment?

3. On 6/25 the statement shows a sell off of 650. 117 principal, the remainder interest and fees. Nowhere do I see the total of 688 that they are asking for. I presume that they added a 38 dollar late fee that month that it was sold off? I do see an additional late fee at the bottom, but they had written off 650?

Thoughts or suggestions?

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3 minutes ago, pierce said:

I will also include a MTC Arbitration.

You should post your draft here before submitting it. 

When you motion to compel arb you assert that all disputes are to be heard before an arbitrator, not the judge. You will only argue the merits of your defense or the competency of their evidence in court if your motion is denied. 

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Filed today, no filing charge.

Sent copies registered mail to the lawyer representing midland.

I will receive a new trial date in the mail.

I now will draft up an mtc arb,and post it here before filling. I'll find a form here on the forum.

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Another thing to look at is the actual agreement, it should state when you can and cannot compel too arbitrate. In my case arb could be filed at any point in an ongoing case so long as it has not gone to trial. The initial meeting between you and the lawyer is usually a status conference so the court knows what avenues each party wishes to take part in. Then a new court date is set after that. ( this was my case and I understand not all courts are the same)

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2 hours ago, MikeB35 said:

Another thing to look at is the actual agreement, it should state when you can and cannot compel too arbitrate. In my case arb could be filed at any point in an ongoing case so long as it has not gone to trial. The initial meeting between you and the lawyer is usually a status conference so the court knows what avenues each party wishes to take part in. Then a new court date is set after that. ( this was my case and I understand not all courts are the same)

Midland filed a suit in small claims with the magistrate. Then directly before the magistrate brought my case, me and the plaintiff had a brief meeting. We had no contact up to that point so I would assume that at the moment I get served, they would argue that I had a case in small claims.

However, the above arbitration clause has no small claims opt out for them. Only that I am not required to arbitrate once in small claims (they can not initiate mandatory arb once in court), unless I claim any wrongdoing.

I feel I have a strong case.

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Can anyone recommend a form for filing an MTC Arbitration in Wisconsin? New court date isn't until the beginning of December, but I would like to file an MTC with the court soon.

I am at a bit of a loss of what I need to say in the motion, and any help would be appreciated.

Should I include: Wis Statute

788.01 Arbitration clauses in contracts enforceable. A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract. This chapter shall not apply to contracts between employers and employees, or between employers and associations of employees, except as provided in s. 111.10, nor to agreements to arbitrate disputes under s. 292.63 (6s) or 230.44 (4) (bm).

And, obviously the Arb agreement above. Should I reference it, and then attach it, or quote it in the motion?

Any and all suggestions are appreciated.

 

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2 hours ago, pierce said:

Can anyone recommend a form for filing an MTC Arbitration in Wisconsin?

There isn't a pre-printed form.  You need to draft a proper motion according tot he formatting style and rules for your court.

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Motion to Compel Arbitration

COMES NOW the Defendant to compel arbitration pursuant to the arbitration terms contained within the attached Synchrony Bank Care Credit  Agreement (Agreement). It states under the ARBITRATION section on page 2 of the Agreement:
“ARBITRATION –  PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST
DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO  INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.”

The Agreement states on its page 2:
" 1. 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 providers that accept the card or program sponsors if it relates to your account.”

The Agreement is clear on which party can elect arbitration but does not make clear which Party should initiate arbitration. Defendant's only responsibility to the Arbitration clause contain within the Agreement is to elect arbitration or not elect arbitration. Defendant has elected arbitration.

“How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can be either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.”

I choose JAMS. On page three the Agreement specifies Plaintiff will pay the cost of arbitrator and arbitration  “If you ask us to, we will pay all the fees the administrator or arbitrator charges”. I ask for them to do so.


Since Plaintiff initiated traditional litigation and has given to the defendant, the choice of venue, in which arbitration was elected, it is reasonable for the Court to compel Plaintiff to initiate arbitration.

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Uh, I just did a case search (Wisconsin has open access so you can see your suits online), and its gone?

I just checked yesterday, or the day before to make sure they got my notice to be heard in circuit court before I filed my MTC Arb and it was there. Now, just vanished?

Could have they dropped the case? What should I do?

I can only assume its either a glitch, or I will receive something in the mail.

 

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CHAPTER 802 CIVIL PROCEDURE — PLEADINGS, MOTIONS AND PRETRIAL PRACTICE

802.01 Pleadings allowed; form of motions.
(1) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a cross claim, if the answer contains a cross claim; a 3rd-party complaint, if a person who was not an original party is summoned under s. 803.05, and a 3rd-party answer, if a 3rd-party complaint is served. No other pleading shall be allowed, except that the court may order a further pleading to a reply or to any answer.
(2)Motions.
(a) How made. An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. Unless specifically authorized by statute, orders to show cause shall not be used.
(b) Supporting papers. Copies of all records and papers upon which a motion is founded, except those which have been previously filed or served in the same action or proceeding, shall be served with the notice of motion and shall be plainly referred to therein. Papers already filed or served shall be referred to as papers theretofore filed or served in the action. The moving party may be allowed to present upon the hearing, records, affidavits or other papers, but only upon condition that opposing counsel be given reasonable time in which to meet such additional proofs should request therefor be made.
(c) Recitals in orders. All orders, unless they otherwise provide, shall be deemed to be based on the records and papers used on the motion and the proceedings theretofore had and shall recite the nature of the motion, the appearances, the dates on which the motion was heard and decided, and the order signed. No other formal recitals are necessary.
(d) Formal requirements. The rules applicable to captions, signing and other matters of form of pleadings apply to all motions and other papers in an action, except that affidavits in support of a motion need not be separately captioned if served and filed with the motion. The name of the party seeking the order or relief and a brief description of the type of order or relief sought shall be included in the caption of every written motion.
(e) When deemed made. In computing any period of time prescribed or allowed by the statutes governing procedure in civil actions and special proceedings, a motion which requires notice under s. 801.15 (4) shall be deemed made when it is served with its notice of motion.

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@pierce Did you read Fist's arbitration pinned thread? He posted a sample that you can modify to include your specific info:

Sample MTC
(Note that is Sample is to show you an idea of what an MTC should look like. Never Copy/Paste this directly into your motion. Adding case law from your own state is a good idea)

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION

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

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, 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.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 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 Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states 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 . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name), Defendant, pro se



Sample Proposed Order

Even if not required by your court rules (REMEMBER, you are ALWAYS to check your local court rules on requirements to file a motion before filing your MTC), it is probably wise to include a proposed order.  Making the Judge's job easier to grant your MTC can't be a bad thing, IMO.  Here is a sample Proposed Order you can include in a seperate page with your MTC:

 

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION

Case No. xxxxxxx :  COURT OF XXXXXXX COUNTY


_____________ (name of plaintiff)               
VS.                                                                                Case No. XXXXXXX
_____________(your name)

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


_______ GRANTED      /    _______ DENIED

Further, this case shall be stayed pending the outcome of private arbitration.


This _____ day of _________________, 2018


By: ________________________

       Judge of the ____________ Court

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Today I received a Motion for Summary judgement by Midland. How should I respond?

Can I object on the grounds that I elected arbitration, and the contract states:

RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST
DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A
JURY WILL RESOLVE ANY SUCH DISPUTE

I could add more, but shouldn't all matters at this point be subjected to arbitration? Why complicate things when a summary judgement would be acting against a binding contract?

 

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I would certainly use the "neither a court nor a jury...." as your cornerstone argument opposing SJ, but I wouldn't leave the rest of their claims unanswered. 

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So I also received a letter from the court stating that a teleconference is setup on (whatever date) in lieu of their motion for summary judgement and to call to provide a phone number.

Should I not answer, and wait for the phone conference? Their objections are 1, basically it is my debt pay up, and 2. that it is untimely to file Arbitration, and as card agreement I needed to write them to notify them I was initiating arbitration, now its too late. They also mentioned that I used the word mediation in my original answer. I looked back, and I did, however then stated I was initiating Arbitration in the same answer and attached the arbitration agreement.

I am inclined to file with the court, and send them, both my answer and my MTC Arb.

 

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Ok, I have it in proper form in WORD, but will just provide the body. There other claim was just stating the usual this is the debt you owe, an affidavit, and a statement. How should I address that point?

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

 

 

 

 

Factual Background and Argument:

 

 

Defendant has elected arbitration. The card agreement clearly states:

 

 

 

 

“How to start an arbitration, and the arbitration process: The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND.”

 

 

This election of arbitration was initiated at the first hearing with the attached Synchrony Bank Care Credit agreement provided.  A formal MOTION TO COMPEL ARBITRATION has now been filed with the court, and sent to the Plaintiff.

 

 

The enforceable nature of arbitration clauses within contracts in Wisconsin is clearly supported by State Statute 788.01 which states:

 

 

“788.01  Arbitration clauses in contracts enforceable. A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract, or out of the refusal to perform the whole or any part of the contract, or an agreement in writing between 2 or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, shall be valid, irrevocable and enforceable except upon such grounds as exist at law or in equity for the revocation of any contract. This chapter shall not apply to contracts between employers and employees, or between employers and associations of employees, except as provided in s. 111.10, nor to agreements to arbitrate disputes under s. 292.63 (6s) or 230.44 (4) (bm).”

 

 

Any act other than Arbitration would be a violation of the agreement, thus the motion for summary motion should be denied.

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