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I have a few things to take care of around the house today, but my hope and plan is to have a rough draft done tonight for proofreading

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@MikeB35 IMO (IANAL) You need to refute/rebut their main arguments with actual citations from the agreement to demonstrate how they're misquoting or misreading the arb clause's terms. Further, you should back up your position with cites from precedential case rulings. 

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17 minutes ago, Brotherskeeper said:

@MikeB35 IMO (IANAL) You need to refute/rebut their main arguments with actual citations from the agreement to demonstrate how they're misquoting or misreading the arb clause's terms. Further, you should back up your position with cites from precedential case rulings. 

Yea, that was kind of the direction I was going in my earlier post of my brainstorm, but you word it much better. lol!

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@MikeB35

I was just trying to reread your previous LVNV stuff. In that one you had to file a motion for leave to file the reply. Is that still the case?

 

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Yes ma'am, I have to file a leave, then follow that with my reply brief. That was the turning point in the LVNV case. That was when they folded.

 

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@MikeB35 IANAL. As I understand this section, the arbitrator and not the judge is to decide whether the costs of consumer-related arbitration to PRA are unconscionable: 

"Arbitration. Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entireAgreement), or the relationships which result from this Agreement (“Claim”) shall be decided, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules and procedures of the arbitration administrator (including any applicable procedures for consumer-related disputes) in effect at the time the Claim is filed. . . .The arbitrator shall have the sole and exclusive authority to resolve any dispute relating to the enforceability of this arbitration provision including any unconscionability challenge or any other challenge that the Agreement or the arbitration provision is void, voidable, or otherwise invalid. "

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Harsco Corp. v. Crane Carrier Co. (1997), 122 Ohio App.3d 406, 410, 701 N.E.2d 1040.

 "Arbitration is favored because its purpose is `to avoid needless and expensive litigation.'" Fairfield Eng. Co. v. Anchor Hocking Corp. (Apr. 10, 1986), Marion App. No. 9-84-37, unreported, 1986 WL 4367, quoting Springfield v. Walker (1885), 42 Ohio St. 543, 546, 1885 WL 49.

[snip]

"The general rule is said to be ` * * * that either party to a contract of arbitration may waive it. * * *' [La Nacional Platanera v. N. Am. Fruit & Steamship Corp. (C.A.5, 1936), 84 F.2d 881, 882.] And a plaintiffs waiver may be effected by filing suit. When the opposite party, the potential defendant, is confronted with a filed lawsuit, the right to arbitrate can be saved by seeking enforcement of the arbitration clause. This is done under R.C. 2711.02 by application to stay the legal proceedings pending the arbitration. Failure to move for a stay, coupled with responsive pleadings, will constitute a defendant's waiver." Mills v. Jaguar-Cleveland Motors, Inc. (1980), 69 Ohio App.2d 111, 113, 23 O.O.3d 142,143-144, 430 N.E.2d 965, 967[Emphasis added ~Brotherskeeper]

"413*413 Harsco waived its right to arbitrate the disagreement with Crane by filing its complaint in the Union County Common Pleas Court. Having previously found that Crane's prelitigation conduct did not constitute a waiver of the arbitration clause, its formal opportunity to either waive or invoke its right to arbitration arose after Harsco filed its complaint. To invoke its right to arbitration, Crane needed to file an application with the trial court to stay the legal proceedings pending the outcome of arbitration. Crane filed a motion to stay the legal proceedings pending the arbitration, as well as a request to the court to refer the issues of design and manufacturing defects to arbitration. Crane's requests to the trial court, however, were three months after it filed an answer in the litigation, and after it answered and issued discovery, including depositions." [Emphasis added~Brotherskeeper]

[snip]

"The record before us demonstrates that Crane filed its motion for stay of proceedings and referral to arbitration within three months after filing its answer. As stated above, the General Assembly, when enacting R.C. 2711.02, did not specify at what point in the litigation process a party must file an application for stay to preserve the right to arbitrate. We recognize that courts of appeals throughout the state have differing opinions regarding the timeliness of a motion for stay of proceedings and referral to arbitration.[5] The better rule of law 416*416 appears to be that a motion for stay of proceedings pending arbitration and a referral to arbitration may be filed after the defending party answers the complaint if (1) the application of the arbitration clause is affirmatively pled in the answer, and (2) the defending parties' conduct, based on the totality of the circumstances under Phillips, does not demonstrate a waiver of the clause. . . .[Emphasis added~Brotherskeeper]

[snip]

". . . .This is true because Crane affirmatively pled the existence of an applicable arbitration clause in its answer, putting both Harsco and the trial court on notice of the arbitration clause. Based on the foregoing, we find that Crane properly preserved its right to arbitration, based on the totality of the circumstances, by asserting the right to arbitrate in its answer, by filing a motion for stay and referral to arbitration three months later, and by not conducting itself in a manner acknowledging that the trial court had jurisdiction over the dispute." [Emphasis added~Brotherskeeper]

 

U.S. Bank Natl. Assn. v. Allen, 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 42 (3d Dist.)

". . . . A contractual arbitration clause "is generally viewed as an expression that the parties agree to arbitrate disagreements within the scope of the arbitration clause, and, with limited exceptions, an arbitration 1246*1246 clause is to be upheld just as any other provision in a contract should be respected." Williams at 471, 700 N.E.2d 859. "`Arbitration is favored because it provides the parties thereto with a relatively expeditious and economical means of resolving a dispute.'" Kelm v. Kelm, 68 Ohio St.3d 26, 29, 623 N.E.2d 39 (1993), quoting Schaefer v. Allstate Ins. Co., 63 Ohio St.3d 708, 712, 590 N.E.2d 1242 (1992). "Arbitration also has the additional benefit of unburdening crowded court dockets." Hayes at ¶ 15, citing Mahoning Cty. Bd. of Mental Retardation & Dev. Disabilities v. Mahoning Cty. TMR Edn. Assn., 22 Ohio St.3d 80, 83, 488 N.E.2d 872 (1986). "In light of the strong presumption favoring arbitration, all doubts should be resolved in its favor." Hayes at ¶ 15, citing Ignazio v. Clear Channel Broadcasting, Inc., 113 Ohio St.3d 276, 2007-Ohio-1947, 865 N.E.2d 18, ¶ 18." [Emphasis added~Brotherskeeper]

FYI--This case below discusses the dismissal/stay issue, noting there is a split authority: 

SHAKOOR v. VXI GLOBAL SOLUTIONS, INC., 2017 Ohio 8018 - Ohio: Court of Appeals, 7th Appellate Dist. 2017

{¶38} Appellants argue that the trial court, upon referring the claims for individual arbitration, had no authority under this statute to dismiss the case; they assert that a stay is required. As the parties note, there is a split in authority, regarding whether dismissal is proper when a trial court refers the matter to arbitration.

{¶39} There are a number of Ohio courts that cite to the plain language of the R.C. 2711.02(B), as quoted above—which only mentions a stay, not dismissal, and uses the word "shall"—to conclude that trial courts should stay cases pending arbitration. See, e.g., U.S. Bank Natl. Assn. v. Allen, 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 42 (3d Dist.) ("As is apparent from the language of the statute, when a trial court determines that certain claims are subject to arbitration, it must stay the entire proceeding until those claims have been arbitrated, even though the action may involve both arbitrable and non-arbitrable claims. The statute does not appear to confer any discretion to the trial court regarding the stay."). Several districts conclude that dismissal of a case is proper where all of the claims are referred to arbitration. See, e.g., Hermes v. Prudential Ins, and Financial Servs., 109 Ohio App.3d 309, 311, 671 N.E.2d 1384 (12th Dist.1996) ("if there are no issues pending that are not referable to arbitration then the case may be dismissed in its entirety by the trial court.").

{¶40} This District has decided in favor of staying the trial court proceedings. In Taylor Winfield Corp. v. Winner Steel, Inc., 7th Dist. No. 05MA191, 2006-Ohio-4608, ¶ 14, we held that the trial court should have stayed proceedings pending arbitration, rather than dismissing for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1). Id. The only caveat with relying on this case to conclude dismissal is not permitted, is that procedurally, the case arose pursuant to a motion to dismiss for lack of subject matter jurisdiction. However, it still stands for the proposition that a stay, rather than dismissal, is the proper course, when the matter is referred to arbitration. The panel noted that "f there are issues in an action which are subject to arbitration, a party can move that the trial court stay trial and refer those issues to arbitration. This is the procedure which should have been followed in this case." Id. at ¶ 1.

{¶41} Further, there are valid policy reasons supporting staying the case rather than dismissing it. R.C. 2711.06 covers subpoenas of witnesses for arbitration proceedings and provides, in pertinent part:

* * *If any person so subpoenaed to testify refuses or neglects to obey such subpoena, upon petition, the court of common pleas in the county in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person before said arbitrators, or punish said person for contempt in the same manner provided for securing the attendance of witnesses or their punishment for neglect or refusal to attend in such court.

{¶42} The statute permits the parties to return to the trial court during the course of arbitration to resolve some disputes. Then, after an arbitration award is rendered, a party is entitled to seek an order from the common pleas court confirming, vacating or modifying the award. R.C. 2711.09-2711.14. If the plaintiff's case is dismissed pending arbitration rather than stayed, the parties would in theory have to file a new action each time the common pleas court's assistance is required, with the attendant risk of having their case assigned to a new judge. On the other hand, if the trial court enters a stay of the action and retains jurisdiction, then proceedings may be expedited, as the parties may simply return to the same judge presiding over the plaintiff's case.

{¶43} Accordingly, Appellants' first assignment of error is meritorious; the trial court should have stayed the matter pending arbitration, rather than dismissing it.

 

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1 hour ago, Brotherskeeper said:

FYI--This case below discusses the dismissal/stay issue, noting there is a split authority: 

SHAKOOR v. VXI GLOBAL SOLUTIONS, INC., 2017 Ohio 8018 - Ohio: Court of Appeals, 7th Appellate Dist. 2017

{¶38} Appellants argue that the trial court, upon referring the claims for individual arbitration, had no authority under this statute to dismiss the case; they assert that a stay is required. As the parties note, there is a split in authority, regarding whether dismissal is proper when a trial court refers the matter to arbitration.

{¶39} There are a number of Ohio courts that cite to the plain language of the R.C. 2711.02(B), as quoted above—which only mentions a stay, not dismissal, and uses the word "shall"—to conclude that trial courts should stay cases pending arbitration. See, e.g., U.S. Bank Natl. Assn. v. Allen, 2016-Ohio-2766, 52 N.E.3d 1237, ¶ 42 (3d Dist.) ("As is apparent from the language of the statute, when a trial court determines that certain claims are subject to arbitration, it must stay the entire proceeding until those claims have been arbitrated, even though the action may involve both arbitrable and non-arbitrable claims. The statute does not appear to confer any discretion to the trial court regarding the stay."). Several districts conclude that dismissal of a case is proper where all of the claims are referred to arbitration. See, e.g., Hermes v. Prudential Ins, and Financial Servs., 109 Ohio App.3d 309, 311, 671 N.E.2d 1384 (12th Dist.1996) ("if there are no issues pending that are not referable to arbitration then the case may be dismissed in its entirety by the trial court.").

{¶40} This District has decided in favor of staying the trial court proceedings. In Taylor Winfield Corp. v. Winner Steel, Inc., 7th Dist. No. 05MA191, 2006-Ohio-4608, ¶ 14, we held that the trial court should have stayed proceedings pending arbitration, rather than dismissing for lack of subject matter jurisdiction pursuant to Civ.R. 12(B)(1). Id. The only caveat with relying on this case to conclude dismissal is not permitted, is that procedurally, the case arose pursuant to a motion to dismiss for lack of subject matter jurisdiction. However, it still stands for the proposition that a stay, rather than dismissal, is the proper course, when the matter is referred to arbitration. The panel noted that "f there are issues in an action which are subject to arbitration, a party can move that the trial court stay trial and refer those issues to arbitration. This is the procedure which should have been followed in this case." Id. at ¶ 1.

{¶41} Further, there are valid policy reasons supporting staying the case rather than dismissing it. R.C. 2711.06 covers subpoenas of witnesses for arbitration proceedings and provides, in pertinent part:

* * *If any person so subpoenaed to testify refuses or neglects to obey such subpoena, upon petition, the court of common pleas in the county in which such arbitrators, or a majority of them, are sitting may compel the attendance of such person before said arbitrators, or punish said person for contempt in the same manner provided for securing the attendance of witnesses or their punishment for neglect or refusal to attend in such court.

{¶42} The statute permits the parties to return to the trial court during the course of arbitration to resolve some disputes. Then, after an arbitration award is rendered, a party is entitled to seek an order from the common pleas court confirming, vacating or modifying the award. R.C. 2711.09-2711.14. If the plaintiff's case is dismissed pending arbitration rather than stayed, the parties would in theory have to file a new action each time the common pleas court's assistance is required, with the attendant risk of having their case assigned to a new judge. On the other hand, if the trial court enters a stay of the action and retains jurisdiction, then proceedings may be expedited, as the parties may simply return to the same judge presiding over the plaintiff's case.

{¶43} Accordingly, Appellants' first assignment of error is meritorious; the trial court should have stayed the matter pending arbitration, rather than dismissing it.

 

Interesting discussion in that one.  But not sure how applicable it is to MikeB35's case, which I understand is in a municipal court.  Note that there is an argument for staying the case, rather than dismissing, for a case that was apparently in a common pleas court.  (My italics in the quote.)  Such as, the need to come back to court after an arb award for confirming, vacating, or modifying it.  But note that all that takes place in a court of common pleas, not the muni court.    This strengthens my position that the proper motion to file in a muni court is a motion to dismiss, or, in the alternative, to stay pending arb.  

But I may be going off on a tangent here.

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6 minutes ago, nobk4me said:

But I may be going off on a tangent here.

@nobk4me No, not all! Thank you for your input here. I'm not familiar with Ohio court divisions. I'm just looking stuff up and hope it helps! Any expertise or advice you can offer is much appreciated.  I believe @MikeB35 said he titled his motion as motion to compel arbitration and stay the case--without including an "in the alternative" clause. He did include the "dismissal or in the alternative stay the case" in his prayer for relief at the end of the motion. 

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On 4/18/2019 at 3:29 PM, Goody_Ouchless said:

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.

 

No, not sinister. By "sly" I just meant that they glanced at AAA info (likely from a cut and paste brief as you pointed out) and think they know how arbitration goes now.  Just as we are seeing in other cases, these attorneys really get tripped up on how arbitration actually does work, so I am only strongly suggesting using JAMS, not only because this attorney may believe they know how AAA works from glancing at a previous brief, but also because JAMS is much more comprehensive and includes things like discovery without having to beg for it like in AAA.

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This is the latest for everyone to keep up to date, I need to file with JAMS ASAP.

04/22/2019 As to XXXXXXXXXX, Written motion filed by Defendant MOTION FOR LEAVE TO FILE on 04/22/2019. Judgment Entry Tendered. Motion #MV19-000055 [Clerk entry]
04/24/2019 As to XXXXXXXXXX, motion #MV19-000055 for MOTION FOR LEAVE TO FILE Granted. [JUDGE XXXXXX]
04/26/2019 As to XXXXXXXXXX, motion #MV19-000047 for MOTION TO COMPEL Granted. [JUDGE XXXXXX]
04/26/2019 As to XXXXXXXXXX, THIS MATTER COMES BEFORE THE COURT UPON THE DEFENDANTS MOTION TO COMPEL ARBITRATION FILED ON MARCH 29 2019. THIS COURT HAS TAKEN INTO CONSIDERATION PLAINTIFFS RESPONSE FILED ON APRIL 15 2019 AND DEFENDANTS REPLY BRIEF FILED ON APRIL 24 2019. BASED UPON THE EVIDENCE PRESENTED THIS COURT FINDS THAT THE CARDHOLDER AGREEMENT CONTAINS AN ARBITRATION CLAUSE WHICH PROVIDES AN OPTION FOR RESOLUTION OF CLAIMS ASSOCIATED WITH THIS ACCOUNT. THE ARBITRATION NOTICE READS THAT ISSUES MAY BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION IF EITHER PARTY CHOOSES TO ARBITRATE. IN THE CASE AT ISSUE DEFENDANT HAS ELECTED TO ARBITRATE THIS ISSUE. THE STATE OF OHIO HAS A PUBLIC POLICY FAVORING THE ENFORCEMENT OF ARBITRATION PROCEEDINGS. SECTION 2711.01(A) OF THE OHIO REVISED CODE PROVIDES THAT ARBITRATION PROVISIONS WILL BE ENFORCED UNLESS GROUNDS EXIST IN LAW OR EQUITY FOR THE REVOCATION OF THE CONTRACT. IT IS THEREFORE ORDERED ADJUDGED AND DECREED THAT DEFENDANTS MOTION TO COMPEL ARBITRATION IS HEREBY GRANTED. IT IS FURTHER ORDERED ADJUDGED AND DECREED THAT THIS MATTER IS HEREBY STAYED PENDING ARBITRATION BETWEEN THE PARTIES. IT IS SO ORDERED.. [JUDGE XXXXXX]
04/26/2019 As to XXXXXXXXXX, Stay filed. [JUDGE XXXXXX]
04/26/2019 This order regarding PORTFOLIO RECOVERY ASSOCIATES and LLC and XXXXXXXXXX is final and appealable. The clerk is hereby directed to serve all parties notice of the judgment and it's date of entry on the journal. [JUDGE XXXXXX]
04/26/2019 This order regarding PORTFOLIO RECOVERY ASSOCIATES and LLC and XXXXXXXXXX is final and appealable. The clerk is hereby directed to serve all parties notice of the judgment and it's date of entry on the journal. [JUDGE XXXXXX]
04/29/2019 FINAL AND APPEALABLE NOTICE forms printed and forwarded for service by ordinary mail to: JDB Address , Printed on 04/29/2019 10:25 by user XXXXXXXX on station 3430. [Clerk entry]
04/29/2019 FINAL AND APPEALABLE NOTICE forms printed and forwarded for service by ordinary mail to: XXXXXXXXXX, My address, Printed on 04/29/2019 10:25 by user XXXXXXXX on station 3430. [Clerk entry]

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:everybodyclap: Aren't you and your wife 3 for 3 now? Hat trick?!! 

"In any arbitration, we will pay the entire amount of the arbitration fees, including any required deposit." (Pl.'s Ex. C, pg. 6.) :-)=

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Yes ma'am, we are 3 for 3 It seems to be that this judge favors arbitration and goes along with ohio policy enforcing arb.

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On 4/19/2019 at 4:12 PM, nobk4me said:

Interesting discussion in that one.  But not sure how applicable it is to MikeB35's case, which I understand is in a municipal court.  Note that there is an argument for staying the case, rather than dismissing, for a case that was apparently in a common pleas court.  (My italics in the quote.)  Such as, the need to come back to court after an arb award for confirming, vacating, or modifying it.  But note that all that takes place in a court of common pleas, not the muni court.    This strengthens my position that the proper motion to file in a muni court is a motion to dismiss, or, in the alternative, to stay pending arb.  

But I may be going off on a tangent here.

I agree, if they file suit in Muni court, dismissal is proper, as a stay of proceeding can only be under the jurisdiction of the common pleas court.

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On 4/19/2019 at 11:18 AM, MikeB35 said:

Yes ma'am, I have to file a leave, then follow that with my reply brief. That was the turning point in the LVNV case. That was when they folded.

 

Can you share you motion, and reply, even their opposition filing, so we can visually see and further understand. it would be greatly appreciated.

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4 hours ago, MikeB35 said:

This is the latest for everyone to keep up to date, I need to file with JAMS ASAP.

04/22/2019 As to XXXXXXXXXX, Written motion filed by Defendant MOTION FOR LEAVE TO FILE on 04/22/2019. Judgment Entry Tendered. Motion #MV19-000055 [Clerk entry]
04/24/2019 As to XXXXXXXXXX, motion #MV19-000055 for MOTION FOR LEAVE TO FILE Granted. [JUDGE XXXXXX]
04/26/2019 As to XXXXXXXXXX, motion #MV19-000047 for MOTION TO COMPEL Granted. [JUDGE XXXXXX]
04/26/2019 As to XXXXXXXXXX, THIS MATTER COMES BEFORE THE COURT UPON THE DEFENDANTS MOTION TO COMPEL ARBITRATION FILED ON MARCH 29 2019. THIS COURT HAS TAKEN INTO CONSIDERATION PLAINTIFFS RESPONSE FILED ON APRIL 15 2019 AND DEFENDANTS REPLY BRIEF FILED ON APRIL 24 2019. BASED UPON THE EVIDENCE PRESENTED THIS COURT FINDS THAT THE CARDHOLDER AGREEMENT CONTAINS AN ARBITRATION CLAUSE WHICH PROVIDES AN OPTION FOR RESOLUTION OF CLAIMS ASSOCIATED WITH THIS ACCOUNT. THE ARBITRATION NOTICE READS THAT ISSUES MAY BE RESOLVED BY BINDING INDIVIDUAL ARBITRATION IF EITHER PARTY CHOOSES TO ARBITRATE. IN THE CASE AT ISSUE DEFENDANT HAS ELECTED TO ARBITRATE THIS ISSUE. THE STATE OF OHIO HAS A PUBLIC POLICY FAVORING THE ENFORCEMENT OF ARBITRATION PROCEEDINGS. SECTION 2711.01(A) OF THE OHIO REVISED CODE PROVIDES THAT ARBITRATION PROVISIONS WILL BE ENFORCED UNLESS GROUNDS EXIST IN LAW OR EQUITY FOR THE REVOCATION OF THE CONTRACT. IT IS THEREFORE ORDERED ADJUDGED AND DECREED THAT DEFENDANTS MOTION TO COMPEL ARBITRATION IS HEREBY GRANTED. IT IS FURTHER ORDERED ADJUDGED AND DECREED THAT THIS MATTER IS HEREBY STAYED PENDING ARBITRATION BETWEEN THE PARTIES. IT IS SO ORDERED.. [JUDGE XXXXXX]
04/26/2019 As to XXXXXXXXXX, Stay filed. [JUDGE XXXXXX]
04/26/2019 This order regarding PORTFOLIO RECOVERY ASSOCIATES and LLC and XXXXXXXXXX is final and appealable. The clerk is hereby directed to serve all parties notice of the judgment and it's date of entry on the journal. [JUDGE XXXXXX]
04/26/2019 This order regarding PORTFOLIO RECOVERY ASSOCIATES and LLC and XXXXXXXXXX is final and appealable. The clerk is hereby directed to serve all parties notice of the judgment and it's date of entry on the journal. [JUDGE XXXXXX]
04/29/2019 FINAL AND APPEALABLE NOTICE forms printed and forwarded for service by ordinary mail to: JDB Address , Printed on 04/29/2019 10:25 by user XXXXXXXX on station 3430. [Clerk entry]
04/29/2019 FINAL AND APPEALABLE NOTICE forms printed and forwarded for service by ordinary mail to: XXXXXXXXXX, My address, Printed on 04/29/2019 10:25 by user XXXXXXXX on station 3430. [Clerk entry] 

Judge stayed the proceedings, so the plaintiff, bears the burden to initiate arb, its nonsensical for defendant to initiate arb action against himself. Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480 at Paragraph 7-10.

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4 hours ago, Robby8900 said:

Can you share you motion, and reply, even their opposition filing, so we can visually see and further understand. it would be greatly appreciated.

I can put all of this together for you a little later this evening, if that is helpful.

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1 minute ago, MikeB35 said:

I can put all of this together for you a little later this evening, if that is helpful.

Yes, thank you very much.

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These are the files I put together with the wonderful help of the community.

All credit goes to those who have put in the time and effort to help me in my process.

Many many thanks goes out to them!

These files are NOT meant to copy and paste, but rather serve as a reference to see arguments made and present my rebuttal.

( * I am not a lawyer, so take caution in what you do for your specific case * )

Below is my motion for leave to file a reply brief in response to plaintiffs response as well as the actual reply brief laying out the issues at hand.

As instructed and taught, the essence of a reply brief is to find the misuse, and misinterpretation of the arb clause pointed out by the JDB. Outline it, and provide your argument to assert fact and case law. It is very important that you touch the points but keep them brief as the judge already knows the details, your just streamlining the (F* ups) for him to see and say" ahhhhhh ok I got it"

@Robby8900 @AlawsoabA1221

 

 

Motion to Leave Forum copy.docx File Brief Forum Copy.docx

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16 hours ago, Robby8900 said:

Judge stayed the proceedings, so the plaintiff, bears the burden to initiate arb, its nonsensical for defendant to initiate arb action against himself. Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480 at Paragraph 7-10.

It is nonsensical for a person who asked for and was granted arbitration in a case to then nitpick by demanding the other side file instead AND giving up the extra little bit of leverage being the Claimant in the arbitration case will hold. 

Let it be known across the land:  If your MTC is granted, FILE THE ARBITRATION CASE IMMEDIATELY AND WITH NO RESERVATIONS.  Filing an arbitration case is the easiest part of this entire process. Not doing so is just plain silly.

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Just now, fisthardcheese said:

Let it be known across the land:  If your MTC is granted, FILE THE ARBITRATION CASE IMMEDIATELY AND WITH NO RESERVATIONS.  Filing an arbitration case is the easiest part of this entire process. Not doing so is just plain silly. 

This will be done today as soon as I get off work! I haven't even received the paper work from the clerk, but I do keep up on my court docket! 😃

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2 hours ago, MikeB35 said:

These files are NOT meant to copy and paste, but rather serve as a reference to see arguments made and present my rebuttal.

^^^Very important point! Under MikeB35's Ohio rules, the Reply brief is limited to new arguments raised in plaintiff's Response that were not in defendant's Motion to compel. Also, a Reply isn't automatically filed; you have to file leave (request) to have the court accept it. Know your court rules. 

2 hours ago, fisthardcheese said:

It is nonsensical for a person who asked for and was granted arbitration in a case to then nitpick by demanding the other side file instead AND giving up the extra little bit of leverage being the Claimant in the arbitration case will hold. 

Right! The only reason this argument (over who should file in arb first) arose was because JDB plaintiff argued MikeB35 breached the arb agreement by not filing himself prior to filing the MTC. This was rebuttal to that argument. It's important to know why you're making an argument. In no way was MikeB35 arguing that JDB should file first. OP's motion was granted as written. 

 

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Thank you! Very nice job.

 

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