pierce

Sued By Midland, denied Arbitration?

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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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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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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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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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On 10/23/2018 at 11:37 AM, 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)

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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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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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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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