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2 hours ago, Brotherskeeper said:

Before you get too far into thinking about this, find out if your court rules allow for a reply to a motion response. Then check to see if there are any restrictions like page length or only to issues not raised in your original motion are permitted in your reply. 

Yes ma'am, My court does allow it. You and I created the last reply brief together. ( you're pretty awesome btw!)

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Things I would ABSOLTELY include with my reply:

1.  I would state that I DO NOT object to a 60 day stay.

2.  I do not object to filling the Demand for arbitration, and in fact, already have the paperwork ready to file immediately upon granting of Defendan't Motion to Compel. I would state that I am only waiting for the MTC to be granted, as it would be improper and against common sense to file an action in arbitration when the same is part of an active case before This Court.

3. I would submit a copy of a JAMS demand.  --- JAMS --- since they are so sly as to mention all of the AAA rules in their response (I am assuming some attorney breifly skimmed the AAA rules only at some point to come up with their silly response).  I would make my JAMS demand an exhibit in support of point number 2 above.

4. I would get as much case law as I could on MTCs granted after the start of a lawsuit to show that it is, in fact, commonplace to file MTC when a lawsuit is filed which contains an underlying arbitration clause.  And also that there is NO case law stating that arbitration must be filed first.

5.  USE JAMS.  USE JAMS.  USE JAMS.

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12 hours ago, MikeB35 said:

My court does allow it. You and I created the last reply brief together. ( you're pretty awesome btw!)

Oops, right. We did.  :oops:  I've got to reread that thread. Thank you. You did an awesome job yourself! 

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6 hours ago, fisthardcheese said:

4. I would get as much case law as I could on MTCs granted after the start of a lawsuit to show that it is, in fact, commonplace to file MTC when a lawsuit is filed which contains an underlying arbitration clause.  And also that there is NO case law stating that arbitration must be filed first.

Great advice! (Perhaps judicial notice of MikeB's own granted MTC in his previous case in the same court?) Let's see what we can find XtypeX  

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When deciding an application to compel or enjoin arbitration, the court cannot rule on the merits of the claims underlying the arbitration (see Academy of Medicine, 842 N.E.2d at 492). The court instead plays a gatekeeping role that is limited to determining issues of substantive arbitrability, such as whether:

The agreement is enforceable (see Valid Arbitration Agreement).

The agreement covers the parties’ dispute (see Scope of Arbitration Agreement).

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I would like to throw this is his face too

Before commencing a proceeding to stay court proceedings and compel arbitration or to enjoin arbitration, petitioner’s counsel should confirm that there is a basis for the court’s subject matter jurisdiction and the exercise of personal jurisdiction over the respondent. Under the OAA, any Ohio court of common pleas has jurisdiction to hear an application to compel arbitration under a written agreement (R.C. 2711.03(A)).Proper bases of personal jurisdiction include:General jurisdiction, which creates jurisdiction over the parties themselves (see Prouse, Dash & Crouch, L.L.P. v. DiMarco, 876 N.E.2d 1226, 1228 (Ohio 2007)).Specific jurisdiction, which is based on a party’s actions, such as contracting to sell goods in the state (R.C. 2307.382).A valid choice of law provision in a contract is insufficient to create personal jurisdiction, but it is a factor the court considers (see Hercules Tire & Rubber Co. v. Murphy, 726 N.E.2d 1080, 1083 (Ohio App. 3rd Dist. 1999))

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11 hours ago, fisthardcheese said:

since they are so sly as to mention all of the AAA rules in their response

Recall the erroneous reference to "Discover." Probably safe to assume that the entire motion was copied from another case and slightly edited. I wouldn't read anything sinister into mention of AAA.

 

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19 hours ago, Brotherskeeper said:

Should he if the contract states they will pay in any arbitration?

 

Missed that one in the agreement.  Maybe this is a topic for the reply brief?

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@MikeB35 How can you have a stay in the court proceedings if you aren't already in court? 

Stay of Proceedings
A ruling by a court to stop or suspend a proceeding or trial temporarily or indefinitely. A court may later lift the stay and continue the proceeding.

ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 500 (1998).

"Ohio and federal courts encourage arbitration to settle disputes. Kelm v. Kelm (1993), 68 Ohio St.3d 26, 27, 623 N.E.2d 39, 40; Southland Corp. v. Keating (1984), 465 U.S. 1, 10, 104 S.Ct. 852, 858, 79 L.Ed.2d 1, 12. Our General Assembly also favors arbitration. R.C. 2711.02 requires a court to stay an action if the issue involved falls under an arbitration agreement, and under R.C. 2711.03, a party to an arbitration agreement may seek an order directing the other party to proceed to arbitration." [Emphasis added~Brotherskeeper]

 

CENTRAL ACCOUNTING SYSTEMS, INC. d.b.a. HEALTH CARE MANAGEMENT GROUP, Plaintiff-Appellant, v. COMPREHENSIVE POST ACUTE NETWORK, LTD, Defendant-Appellee. No. CA2014-03-082. Court of Appeals of Ohio, Twelfth District, Butler County.  November 17, 2014.

{¶ 7} According to Ohio's Arbitration Act, R.C. Chapter 2711,

A provision in any written contract, except as provided in division (B) of this section, to settle by arbitration a controversy that subsequently arises out of the contract, or out of the refusal to perform the whole or any part of the contract, or any agreement in writing between two or more persons to submit to arbitration any controversy existing between them at the time of the agreement to submit, or arising after the agreement to submit, from a relationship then existing between them or that they simultaneously create, shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or in equity for the revocation of any contract.[1]

R.C. 2711.01(A). R.C. 2711.02(B) provides that when a valid arbitration clause exists, a court can stay the proceedings in the trial court, and R.C. 2711.03(A) permits a court to compel arbitration. [Emphasis added~Brotherskeeper]

{¶ 8} Arbitration is a favored method of dispute resolution in the law. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471 (1998). The strong public policy in favor of arbitration is codified in Ohio's Arbitration Act, as quoted above, which requires a court to stay an action if it involves an issue subject to an arbitration agreement. R.C. 2711.01(A); See also ABM Farms, Inc. v. Woods, 81 Ohio St.3d 498, 500 (1998). Where there are doubts regarding the application of an arbitration clause, such doubts should be construed in favor of arbitrability. Council of Smaller Enterprises v. Gates, McDonald & Co., 80 Ohio St.3d 661, 666 (1998). [Emphasis added ~Brotherskeeper]

 

"{¶ 42} Similarly, when a party challenges an arbitration provision as unconscionable pursuant to R.C. 2711.01(A), the party must show that the arbitration clause itself is unconscionable. If the court determines that the arbitration clause is enforceable, claims of unconscionability that relate to the contract generally, rather than the arbitration clause specifically, are properly left to the arbitrator in the first instance. Taylor Bldg. Corp. of Am. v. Benfield, 884 N.E.2d 12, 20 (Ohio 2008). "

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Im working on my reply brief currently and Im just spitballing ideas into it. I will need a proofread and corrections once I post. Just keeping the thread active and up to date. I need to finish this soon as a reply brief has a window of 7 days in accordance with my local court rules. Thank you everyone!

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@MikeB35 In the Response the attorney quotes a section of the arb agreement, with bold emphasis on this statement:

"The party initially requesting arbitration SHALL SELECT either the American Arbitration Association (“AAA”) or JAMS (originally, Judicial Arbitration and Mediation Services) as the arbitration administrator..."  

The attorney conveniently leaves out the next sentence which reads: 

"You may change the selection to the other organization listed within 30 days after you receive notice of an election to arbitrate." 

Nothing in that arb section requires you to file a claim demand with an arbitral forum, only that you select one--which may be changed within 30 days after you recieve notice of an election to arbitrate. 

Did you indicate that you "selected" JAMS or AAA in your affirmative defense or in your motion? 

Merriam-Webster defines "select" as follows:

select verb
selected; selecting; selects
Definition of select (Entry 2 of 3)
transitive verb

: to choose (as by fitness or excellence) from a number or group : pick out
intransitive verb

: to make a choice

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Just now, Brotherskeeper said:

Did you indicate that you "selected" JAMS or AAA in your affirmative defense or in your motion? 

No I didnt specify any company, I dont know where he came up with his defense lol

 

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I just started writing my document and this is just a spitball idea I came up with using some of the suggestions.

BACKGROUND

Plaintiff Portfolio Recovery Associates attached to its Complaint a copy of the “DELL PREFERRED ACCOUNT CREDIT AGREEMENT”. This agreement, is a true and correct copy which binds both parties. For the record the Defendant would like to point out that this matter is not binding with a company called “Discover” as the Plaintiff has erroneously asserted in its opposition. The defendant is exercising his rights to arbitration, and in doing so has followed all steps correctly in accordance with the “agreement”. Defendant in the meantime, is patiently waiting for the ruling on his Motion to Compel, as it would be improper, and against common sense to file an action in arbitration when the same is part of an active case before this Court.

 

 

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21 minutes ago, MikeB35 said:

No I didnt specify any company, I dont know where he came up with his defense lol

 

Under the terms of the contract's arb section, the party initially requesting arbitration (you) shall (must) select JAMS or AAA. You did not do this. PRA was notified when it received your answer with affimative defenses of your election to arbitrate the disputes and claims of their complaint. PRA did not contact you to discuss arb or a forum selection. 

Their defense is weak IMO, but they're giving it a shot. 

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I did not recieve any such phone call, letter, voicemail etc etc. The whole AAA thing and cost etc is all worded fancy to take your mind away from the underlining issue. That, in a nut shell saying. "hey were going to go ahead and move it from "here" to "there". They dont want to move "there" .

 

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46 minutes ago, MikeB35 said:

This agreement, is a true and correct copy which binds both parties.

I would not attest to this. They submitted this copy and they claim it is the applicable contract. 

12 minutes ago, MikeB35 said:

it looks like I have 7 days

Seven days from when? What date is it due? 

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I apologise They filed their oposition on the 15th of April. My court allows 7 days to respond.

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3 minutes ago, MikeB35 said:
 

I apologise They filed their oposition on the 15th of April. My court allows 7 days to respond.

So, it's due to be filed and served on April 22?

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When do plan to have this reply in its final form?

 

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