pierce

Sued By Midland, denied Arbitration?

57 posts in this topic

1 hour ago, pierce said:

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.

Too late how? Was there a timeframe or sequence of events laid out in the agreement that you didn't follow? Did they cite any caselaw supporting their contention that it's too late? 

Share this post


Link to post
Share on other sites

No.  they started no case law.

They used the same argument on the magistrate,which is why I asked to be heard by a judge.

 

Share this post


Link to post
Share on other sites
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.

 

Share this post


Link to post
Share on other sites

Just thinking out loud. What would constitute breach of contact in this situation?

Can I counter sue on the grounds that they are blatantly not honoring their contact? (Now that it is written in the summary judgement)

 

Share this post


Link to post
Share on other sites
2 hours ago, pierce said:

Just thinking out loud. What would constitute breach of contact in this situation?

Can I counter sue on the grounds that they are blatantly not honoring their contact? (Now that it is written in the summary judgement)

 

No.  The agreement allows them to sue in court.  They have the right to object to arbitration which is the reason for a motion to compel.  

If the judge had granted your MTC and they still refused, you could file a motion to dismiss and request sanctions against the plaintiff.  The sanction would usually be a dismissal in your favor. 

In addition, courts have ruled that a party who first breaches a contract cannot complain if the other party later refuses to honor the contract. 

  • Like 1

Share this post


Link to post
Share on other sites
45 minutes ago, BV80 said:

No.  The agreement allows them to sue in court.  They have the right to object to arbitration which is the reason for a motion to compel.  

If the judge had granted your MTC and they still refused, you could file a motion to dismiss and request sanctions against the plaintiff.  The sanction would usually be a dismissal in your favor. 

In addition, courts have ruled that a party who first breaches a contract cannot complain if the other party later refuses to honor the contract. 

They are aloud to sue. Yes. 

However, in light of a contractual obligation to arbitrate they file a summary judgment stating otherwise. This shows prior knowledge and understanding of their contact,  and then they willfully try to argue that I have no grounds by quoting the contract.

I would argue that midland, or representative lawyers have great knowledge of the contract, yet have continued in the hopes that I would not call them out.

 

Is that not breach of contract? In other words, they understand the contract, but  they willfully play the game hoping that lose by not understanding, or following through with the contract in court.

Share this post


Link to post
Share on other sites
17 minutes ago, pierce said:

They are aloud to sue. Yes. 

However, in light of a contractual obligation to arbitrate they file a summary judgment stating otherwise. This shows prior knowledge and understanding of their contact,  and then they willfully try to argue that I have no grounds by quoting the contract.

I would argue that midland, or representative lawyers have great knowledge of the contract, yet have continued in the hopes that I would not call them out.

 

Is that not breach of contract? In other words, they understand the contract, but  they willfully play the game hoping that lose by not understanding, or following through with the contract in court.

Yes, they understand the contract, and that contract allows them to sue.  The only way they can be compelled to arbitrate is by court order.  

And, again, the party who first breaches a contract cannot sue the other party for later breaching the contract.  If you failed to pay, you were the first to breach the contract.  

Share this post


Link to post
Share on other sites

@pierce Your Wisconsin Supreme Court's 2015 decision in First Weber Group, Inc. v Synergy Real Estate Group has what you need to make your argument with Wisconsin and US Supreme Court citations. (IANAL) 

" In First Weber Group, Inc. v. Synergy Real Estate Group, LLC, 2015 WI 34, 361 Wis. 2d 496, 860 N.W.2d 498, our supreme court concluded that the question of whether a request for arbitration was timely is to be determined in arbitration and not in the circuit court, unless the parties have agreed otherwise. See id., ¶¶32, 37, 47-49. In concluding that the timeliness of the request should be determined in arbitration, the First Weber court focused on the distinction between substantive and procedural arbitrability. See id., ¶¶34-46. Substantive arbitrability refers to whether the dispute involves a subject matter that parties have contracted to submit to arbitration, and is generally determined by the court. Id., ¶34. Procedural arbitrability refers to "`issues such as whether certain procedures apply to a particular dispute, whether such procedures were followed or excused, and whether unexcused failure to follow procedure avoids the duty to arbitrate.'" Id. (quoted source omitted). Procedural arbitrability also includes issues relating to whether prerequisites to an obligation to arbitrate, such as time limits, notice, and other conditions precedent, have been satisfied. Id., ¶37. The First Weber court concluded that issues of procedural arbitrability, including timeliness, "are to be resolved during arbitration, rather than by a court, unless the parties agreed otherwise." Id."

 

First Weber Group v Synergy Real Estate paragraph 36:

"¶ 36 In an action to compel arbitration, a court's role generally is limited to determining the question of substantive arbitrability, unless the parties specifically agreed otherwise. See Kimberly Area Sch. Dist., 222 Wis.2d at 37-39, 586 N.W.2d 41. Specifically, the court decides "whether the [arbitration] agreement could cover the controversy," not whether the agreement "expressly covers the dispute." Racine Educ. a$$'n v. Racine Unified Sch. Dist., 176 Wis.2d 273, 284, 500 N.W.2d 379 (Ct.App.1993) (citing Joint Sch. Dist. No. 10, 78 Wis.2d at 111, 253 N.W.2d 536). Given the limited role of a court, the court must order arbitration if the arbitration agreement could cover the subject matter of the dispute. Id. at 284-85, 500 N.W.2d 379. Any doubt concerning the scope of the agreement must be resolved in favor of compelling arbitration. Cirilli, 322 Wis.2d 238, ¶ 14, 776 N.W.2d 511*511 272 (citing AT & T Techs. v. Commc'ns Workers, 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). " 

 

This Kansas Appeal Court ruling cites First Weber v Synergy and has an easy to understand argument you may find helpful:

Portfolio Recovery Associates, LLC v. Dixon, 366 P. 3d 245 - Kan: Court of Appeals 2016

"However, where the "contract is silent on the matter of who primarily is to decide `threshold' questions about arbitration, courts determine the parties' intent with the help of presumptions." BG Group, PLC v. Republic of Argentina, 572 U.S. ___, 134 S.Ct. 1198, 1206, 188 L.Ed.2d 220 (2014). As to procedural preconditions to arbitration such as waiver, the United States Supreme Court has stated:

"[C]ourts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration. See Howsam [v. Dean Witter Reynolds, Inc., 537 U.S. 79,] 86, 123 S.Ct. 588[, 154 L.Ed.2d 491(2002)] (courts assume parties `normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters' (emphasis added)). These procedural matters include claims of `waiver, delay, or a like defense to arbitrability.' Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)." 134 S.Ct. at 1207. "
 
  • Like 1

Share this post


Link to post
Share on other sites
On 11/2/2018 at 9:02 PM, pierce said:

Just thinking out loud. What would constitute breach of contact in this situation?

Can I counter sue on the grounds that they are blatantly not honoring their contact? (Now that it is written in the summary judgement)

 

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.

2.  The MTC itself, which if you use the template that @Brotherskeeper posted above, I would include the WI case law she also provided and insert it right above the Supreme Court case law in the MTC template.

THAT'S IT.  Nothing about the debt, the contract or the account should be even entertained.  All of those arguments are to be heard in arbitration only, NOT in court.

  • Like 1

Share this post


Link to post
Share on other sites

Thanks you

2 hours 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.

2.  The MTC itself, which if you use the template that @Brotherskeeper posted above, I would include the WI case law she also provided and insert it right above the Supreme Court case law in the MTC template.

THAT'S IT.  Nothing about the debt, the contract or the account should be even entertained.  All of those arguments are to be heard in arbitration only, NOT in court.

Thank you. I submitted both my opposition to summary judgement addressing the two issues, along with my MTC Arb. They have set a date to discuss the two motions over the phone. I have a week to prepare.

I am hoping that best case scenario is that the judge will dismiss the summary judgement in light of my election of arbitration, and then grant my MTC arb. This would mean that no court date would necessary, unless they set a future date to make sure the case is moving in arbitration.

Share this post


Link to post
Share on other sites

They submitted an objection to my MTC to Arb. Was expected I guess.

 

Do I respond to that objection/

Share this post


Link to post
Share on other sites
20 minutes ago, pierce said:

They submitted an objection to my MTC to Arb. Was expected I guess.

 

Do I respond to that objection/

I would.  What did they say in it?

Share this post


Link to post
Share on other sites

Defendant has waived the right to arbitrate

Its quite wordy, but the only objection is the above. They then site: JP Morgan Chase Bank v. Edward O. Allen, 2010 WI APP 84 (unpublished). (See attached).

Then there is a 10 page attachment with the basic rundown of that case. However, in that case (I read it), after quite a few trips to court, Arbitration was elected, and granted. However, it  was only after the court granted 60 days to start the Arb process, he failed to start it. He then asked for arbitration a second time, with the argument that JP Morgan should initiate arbitration. The court then denied the motion to arbitrate as he had failed to begin the process within the court granted time.

How should I respond?

Share this post


Link to post
Share on other sites

@pierce IANAL. The J.P. Morgan v Allen case they cited is unpublished and not precendential. However, the case cites that the WI appeals court based this ruling on are an excellent place to start. You need to distinguish your specific case facts from the Allen case, using citations from published WI cases as support. Look for the standards that the highest court used to determine whether arbitration is waived or not. 

Meyer v. Classified Ins. Corp. of Wis., 179 Wis. 2d 386, 396, 507 N.W.2d 149 (Ct. App. 1993).

 

Kirk v. Credit Acceptance Corporation, 2013 WI App 32, 346 Wis. 2d 635, 829 N.W.2d 522.

¶ 46 It is true that simply filing a lawsuit, see Frank Lloyd Wright Found., 20 Wis.2d at 387, 122 N.W.2d 409, or simply conducting discovery, see J.J. Andrews, 164 Wis.2d at 223-24, 474 N.W.2d 756, before asking for arbitration do not constitute waiver. However, as we noted in Meyer, the issue of whether conduct constitutes waiver depends on the "overall evaluation of the applicant's involvement and conduct up to the time of [the] request [for arbitration]." Id., 179 Wis.2d at 397, 507 N.W.2d 149. In Meyer, we held that the following actions waived arbitration: the defendant failed to file a motion to stay for arbitration by the deadline for motion filing in the scheduling order; the case had been pending a long time; the case had advanced to the "number one jury trial case"; and the defendant had not included an arbitration request in its answer. Id. at 397-99, 507 N.W.2d 149.

 

 

  • Like 2

Share this post


Link to post
Share on other sites

I have a telephone motion hearing in regards to their summary judgement, and my MTC to Arb this afternoon.

Any recommendations? What can I expect?

Share this post


Link to post
Share on other sites
1 hour ago, pierce said:

I have a telephone motion hearing in regards to their summary judgement, and my MTC to Arb this afternoon.

Any recommendations? What can I expect?

Ask that your MTC be heard first due to it being a question of jurisdiction in this case.  If they for some reason will not hear it first, cite arbitration as a "genuine dispute" in this matter as part of the other genuine disputes that still need to be resolved, and therefore, their MSJ should be denied. 

Have copies of your motions in front of you along with any case laws you found to support your arguments on each.  Just be prepared to reiterate the points in your motions and response to their MSJ and to explain why the judge should rule in your favor on them.

  • Like 1

Share this post


Link to post
Share on other sites

@pierce IANAL. Does your agreement contain the following language? I've underlined what I think is important to have handy during the telephone hearing. 1.) The parties to the Agreement are you and Synchrony Bank ("we," "us" or "our"); 2.) This Agreement  comprises the 4 sections plus the application; and 3.) Synchrony ("we") may assign any or all of "our" rights and duties under this Agreement. (Legal duty : an obligation arising out of contract or law. Generally, a duty is an obligation and a right is a entitlement.)

 

"SECTION III: STANDARD PROVISIONS

ABOUT THE CREDIT CARD ACCOUNT AGREEMENT

This Agreement. This is an Agreement between you and Synchrony Bank, 170 Election Road, Suite 125, Draper, UT 84020, for your credit card account. By opening or using your account, you agree to the terms of the entire Agreement. The entire Agreement includes the four sections of this document and the application you submitted to us in connection with the account. These documents replace any other agreement relating to your account that you or we made earlier or at the same time.

Parties To This Agreement. This Agreement applies to each accountholder approved on the account and each of you is responsible for paying the full amount due, no matter which one uses the account. We may treat each of you as one accountholder and may refer to each of you as “you” or “your”. Synchrony Bank may be referred to as “we”, “us” or “our”.

IMPORTANT INFORMATION ABOUT THIS AGREEMENT

Assignment. We may sell, assign or transfer any or all of our rights or duties under this Agreement or your account, including our rights to payments. We do not have to give you prior notice of such action. You may not sell, assign or transfer any of your rights or duties under this Agreement or your account."

Share this post


Link to post
Share on other sites

@pierce IANAL. I posted some published Wisconsin case citations that should have what you need to argue against waiver of your right to arbitration. Here are some additional cites. Good luck today!!

Construction of a contract is essentially a question of determining the intent of the parties. Armstrong v. Colletti, 88 Wis. 2d 148, 153, 276 N.W.2d 364 (Ct. App. 1979). Where the terms of the contract are plain and unambiguous, we will construe it as it stands. Hortman v. Otis Erecting Co., 108 Wis. 2d 456, 461, 322 N.W.2d 482 (Ct. App. 1982).

 

Our supreme court has set forth the following rule to help courts determine if arbitration has been waived:

Any conduct of the parties inconsistent with the notion that they treated the arbitration provision as in effect, or any conduct which might be reasonably construed as showing that they did not intend to avail themselves of such provision, may amount to a waiver thereof and estop the party charged with such conduct from claiming its benefits.

Id. (citing City of Madison v. Frank Lloyd Wright Found., 20 Wis.2d 361, 387, 122 N.W.2d 409 (1963)) (brackets omitted)."

 

¶ 46 It is true that simply filing a lawsuit, see Frank Lloyd Wright Found., 20 Wis.2d at 387, 122 N.W.2d 409, or simply conducting discovery, see J.J. Andrews, 164 Wis.2d at 223-24, 474 N.W.2d 756, before asking for arbitration do not constitute waiver. However, as we noted in Meyer, the issue of whether conduct constitutes waiver depends on the "overall evaluation of the applicant's involvement and conduct up to the time of [the] request [for arbitration]." Id., 179 Wis.2d at 397, 507 N.W.2d 149. In Meyer, we held that the following actions waived arbitration: the defendant failed to file a motion to stay for arbitration by the deadline for motion filing in the scheduling order; the case had been pending a long time; the case had advanced to the "number one jury trial case"; and the defendant had not included an arbitration request in its answer. Id. at 397-99, 507 N.W.2d 149."

 

Meyer v. Classified Ins. Corp. of Wis.,   179 Wis. 2d 386, 399, 507 N.W.2d 149 (Ct. App. 1993).:

"[13]  In sum, we hold that absent conduct constituting default or waiver, a party has a right under sec. 788.02, Stats., to a stay of proceedings and referral to arbitration after the commencement of the case."

Share this post


Link to post
Share on other sites

It took just a few minutes, and I said my name only, and answered yes, to the question that I still wanted the MTC granted.

The judge then spent the rest off the time talking to Midlands lawyer. He seemed puzzled why he as a lawyer would try to argue against arbitration when arbitration is so clearly contractually obligated. He then talked about the supreme court case ATT Mobility which someone provided me with me (brothers keeper?). He said it was so clear, that the supreme court was unanimous in its decision - and that never happens. You would have to be so clearly uninformed to take such a stance against the supreme court.

Now for arbitration!

 

  • Like 1

Share this post


Link to post
Share on other sites

One more thing - the lawyer mentioned the costly nature of Arbitration, how it could be drawn out with additional expenses etc. Judge only replied, 'you made your bed, now lay in it'.

  • Haha 2

Share this post


Link to post
Share on other sites
40 minutes ago, pierce said:

Now for arbitration!

:cheerleader:

37 minutes ago, pierce said:

One more thing - the lawyer mentioned the costly nature of Arbitration, how it could be drawn out with additional expenses etc. Judge only replied, 'you made your bed, now lay in it'.

:bedjump:

41 minutes ago, pierce said:

He then talked about the supreme court case ATT Mobility which someone provided me with me (brothers keeper?).

@fisthardcheese stresses this SCOTUS ruling all the time. 

 

43 minutes ago, pierce said:

He said it was so clear, that the supreme court was unanimous in its decision - and that never happens.

Um...it didn't happen: 

Judgment: Ninth Circuit Reversed, 5-4, in an opinion by Justice Scalia on April 27, 2011. Justice Thomas filed a concurring opinion. Justice Breyer filed a dissenting opinion, which was joined by Justices Ginsburg, Sotomayor, and Kagan.

Share this post


Link to post
Share on other sites
49 minutes ago, pierce said:

One more thing - the lawyer mentioned the costly nature of Arbitration, how it could be drawn out with additional expenses etc. Judge only replied, 'you made your bed, now lay in it'.

This judge needs a high five! LMFAO!

 

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now