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Cavalry is Suing Me, Free Attorney Not Much Help


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On 3/27/2019 at 5:18 PM, Miss Abbie said:

Does anyone know of any preparation I should be getting done before my next court date, which is when my MTC will be considered?

Should I be preparing anymore paperwork? Is there anything in particular I should say to the judge or the court, especially if the Plaintiff's attorney argues against my motion? As I said, I most likely won't have a  CLARO attorney willing to help me. Based on a previous CLARO attorney's words, I don't believe they are required to help me if they don't agree with my plan of action.

I need to know exactly what to do should I end up going at it alone.

Thank you :)

Most of the info you need is right in your MTC.  Bring a copy of it with you (or 3 just in case the attorney or judge claims to not have one).  Also bring a copy of your card agreement and highlight the relevant parts so you can find them easier if they attorney tries to say that arbitration does not apply to them or something along those lines.

Also, if you have any specific case laws from your state that show that a court MUST grant arbitration when a valid agreement exists, I would print that and bring it too.

At this stage, you should know that the ONLY argument that should be discussed in court is whether or not the arbitration agreement you have is valid.  All case laws will say that if it is valid, then the court MUST allow arbitration.  If the other side does not file any opposition or objection before your court date, then I would ask the judge to grant your MTC as UNOPPOSED.  And if they attempt to orally argue against arbitration without having filed an opposition or objection, I would OBJECT to their opposition as untimely (look up your court's rules on motions and see what kind of time limit they have to file an opposition to your motion and if they missed that time frame, cite the court rule in your objection and ask for the motion to be granted as unopposed).

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  • 1 month later...

Thank you, firsthardcheese, I somehow missed this comment when it was originally made. I return to court soon and stopped by again to read up a bit more on what I should do or say. As it stands right now, the opposing attorney hasn't filed any sort of opposition that I know of. I'm still a bit nervous, as other than what was in my original MTC, I'm not sure how to find or present New York case laws that favor arbitration to the judge in court.

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5 hours ago, Miss Abbie said:

Thank you, firsthardcheese, I somehow missed this comment when it was originally made. I return to court soon and stopped by again to read up a bit more on what I should do or say. As it stands right now, the opposing attorney hasn't filed any sort of opposition that I know of. I'm still a bit nervous, as other than what was in my original MTC, I'm not sure how to find or present New York case laws that favor arbitration to the judge in court.

@usctrojanalum @Brotherskeeper  Do you guys have NY case law that states if a valid arbitration agreement exist, then arbitration must be the method of resolution?

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3 hours ago, fisthardcheese said:

@usctrojanalum @Brotherskeeper  Do you guys have NY case law that states if a valid arbitration agreement exist, then arbitration must be the method of resolution?

"The parties do not dispute that the arbitration clause at issue in this case is governed by the Federal Arbitration Act ("FAA") since the contract evidences a transaction involving commerce.

Arbitration is a favored, as a matter of policy, both under the FAA and New York's public policy, as a method of resolving disputes (Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66 [2007]). However, because arbitration is contractual by nature insofar as "`a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit'" (Thomson-CSF, S.A. v American Arbitration Assoc., 64 F3d 773 [2d Cir 1995], quoting United Steelworkers of Am. v Warrior & Gulf Nav. Co. 363 US 574 [1960]), "such agreements must not be so broadly construed as to encompass claims and parties that were not intended by the original contract" (Thomson-CSF, S.A., 64 F3d at 776).[7]

Unless the parties have agreed otherwise, the court must determine whether the parties made a valid agreement to arbitrate (Matter of Smith Barney Shearson Inc. v Sacharow, 91 NY2d 39, 45 [1997]; Brown v Bussey, 245 AD2d 255, 255 [2d Dept 1997]) and if so, whether the issue sought to be submitted to arbitration falls within the scope of that agreement (Matter of County of Rockland [Primiano Constr.Co., Inc.], 51 NY2d 1, 7 [1980]). Pursuant to the FAA, the construction of the arbitration agreement (i.e., whether there is an agreement to arbitrate) is governed by New York's substantive law.

"In order for the Court to compel arbitration, the agreement to arbitrate between the parties must be clear, explicit and unequivocal" (Albanese v Albanese, 2004 NY Slip Op 51003 at *3, 4 Misc 3d 1023[A] [Sup Ct NY County 2004] [Austin, J])], citing Marek v Alexander Laufer & Son, Inc., 257 AD2d 363 [1st Dept 1999]; M.I.F. Sec. Co. v R.C. Stamins & Co., 94 AD2d 211 [1st Dept 1982], affd 60 NY2d 936 [1983]; Exercycle Corp. v Maratta, 9 NY 329 [1961]). The movant has the burden to show a "clear and unequivocal" agreement to arbitrate the claim (Gerling Global Reins. Corp. v The Home Ins. Co., 302 AD2d 118, 123 [1st Dept 2002), lv denied 99 NY2d 511 [2003]; see also Bar-Ayal v Time Warner Cable Inc., 2006 WL 2990032 at *8 [SD NY 2006]; Allstate Ins. Co. v Roseboro, 247 AD2d 379 [2d Dept 1998]). And "`the threshold for clarity of agreement to arbitrate is greater than with respect to other contractual terms'" (Matter of Waldron, supra, 61 NY2d at 185; quoting Application of Doughboy Indus., 17 AD2d 216, 219 [1st Dept 1963])."

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Guest usctrojanalum

What case law did you put in your motion to compel? Use those cases in support of your argument. It would be technically improper if you brought up case law for the first time at a hearing without giving other side opportunity to oppose and respond to it. 

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14 minutes ago, usctrojanalum said:

What case law did you put in your motion to compel? Use those cases in support of your argument. It would be technically improper if you brought up case law for the first time at a hearing without giving other side opportunity to oppose and respond to it. 

Can she have those at the ready at the hearing, in case Cavalry makes an argument one of these cites would refute? 

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Guest usctrojanalum

Impossible to know for sure. All arguments are technically supposed to be made on paper prior to the hearing date. In any event, judge may give leeway to those who are unrepresented. 

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8 hours ago, usctrojanalum said:

What case law did you put in your motion to compel? Use those cases in support of your argument. It would be technically improper if you brought up case law for the first time at a hearing without giving other side opportunity to oppose and respond to it. 

I copied everything listed in the Sample MTC on this forum.

My thing is, do I just go to court and stand before the judge and rattle off previous rulings and court dates?

Honestly, a lot of stuff mentioned in the Sample MTC is truncated portions or larger rulings and hard for me to understand, much less try and explain to a judge.

I think I need to be able to understand this myself before I can argue it before a judge.

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9 hours ago, Brotherskeeper said:

"The parties do not dispute that the arbitration clause at issue in this case is governed by the Federal Arbitration Act ("FAA") since the contract evidences a transaction involving commerce.

Arbitration is a favored, as a matter of policy, both under the FAA and New York's public policy, as a method of resolving disputes (Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66 [2007]). However, because arbitration is contractual by nature insofar as "`a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit'" (Thomson-CSF, S.A. v American Arbitration Assoc., 64 F3d 773 [2d Cir 1995], quoting United Steelworkers of Am. v Warrior & Gulf Nav. Co. 363 US 574 [1960]), "such agreements must not be so broadly construed as to encompass claims and parties that were not intended by the original contract" (Thomson-CSF, S.A., 64 F3d at 776).[7]

Unless the parties have agreed otherwise, the court must determine whether the parties made a valid agreement to arbitrate (Matter of Smith Barney Shearson Inc. v Sacharow, 91 NY2d 39, 45 [1997]; Brown v Bussey, 245 AD2d 255, 255 [2d Dept 1997]) and if so, whether the issue sought to be submitted to arbitration falls within the scope of that agreement (Matter of County of Rockland [Primiano Constr.Co., Inc.], 51 NY2d 1, 7 [1980]). Pursuant to the FAA, the construction of the arbitration agreement (i.e., whether there is an agreement to arbitrate) is governed by New York's substantive law.

"In order for the Court to compel arbitration, the agreement to arbitrate between the parties must be clear, explicit and unequivocal" (Albanese v Albanese, 2004 NY Slip Op 51003 at *3, 4 Misc 3d 1023[A] [Sup Ct NY County 2004] [Austin, J])], citing Marek v Alexander Laufer & Son, Inc., 257 AD2d 363 [1st Dept 1999]; M.I.F. Sec. Co. v R.C. Stamins & Co., 94 AD2d 211 [1st Dept 1982], affd 60 NY2d 936 [1983]; Exercycle Corp. v Maratta, 9 NY 329 [1961]). The movant has the burden to show a "clear and unequivocal" agreement to arbitrate the claim (Gerling Global Reins. Corp. v The Home Ins. Co., 302 AD2d 118, 123 [1st Dept 2002), lv denied 99 NY2d 511 [2003]; see also Bar-Ayal v Time Warner Cable Inc., 2006 WL 2990032 at *8 [SD NY 2006]; Allstate Ins. Co. v Roseboro, 247 AD2d 379 [2d Dept 1998]). And "`the threshold for clarity of agreement to arbitrate is greater than with respect to other contractual terms'" (Matter of Waldron, supra, 61 NY2d at 185; quoting Application of Doughboy Indus., 17 AD2d 216, 219 [1st Dept 1963])."

This is an example of what I mentioned in my above comment. How do I say this stuff SIMPLY to a judge without reading off all those numbers and dates, and so forth?

 

:)

Edited by Miss Abbie
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@usctrojanalum is the expert on this. In NY, the highest court is the The Court of Appeals. A precedential ruling by your state's highest court or the US Supreme Court is best. If it is a case name commonly cited as authority, it's likely familiar to the court and the attorneys by just the parties' names. If the case name is less well known, you may need more. In the case below, it may be familiar enough that Stark v. Molod Spitz is enough. According to Google Scholar, this case has been cited 93 times. If you have a copy of the ruling with you, you'll be prepared to show it if necessary. usctrojanalum may have better advice--and whether you should use this at all. You might say, the Court of Appeals in Stark v. Molod Spitz DeSantis & Stark, has "repeatedly recognized New York's long and strong public policy favoring arbitration."

New York Law Reports Style Manual

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12 hours ago, Miss Abbie said:

How do I say this stuff SIMPLY to a judge

"There is a valid arbitration agreement between the parties, therefore, my Motion to Compel Arbitration should be granted".

The only arguments the other side can make is that somehow the Card Agreement does not apply to them (false), or that this agreement is the wrong one (pretty hard to prove if you filed an affidavit or they filed the card agreement themselves).  Short of these things, there should not be any question that the Card Agreement which includes an arbitration clause is a valid agreement between the parties.  This is all the court needs.

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Thank you firsthardcheese and usctrojanalum.

 

I'm writing a few notes and talking points for myself, just to be ready. You never know what the opposing side will do, so I want to be as prepared as possible.

I'm hopeful because they haven't filed any sort of motion against my motion. However, the attorney's office called me the other day and I refused to speak to them over the phone. Was that a mistake? They claimed they needed to verify some things in advance, including the last 4 of my social. I declined to provide that info and told them if they had anything to say to me the proper channel would be court or certified mail.

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5 minutes ago, Miss Abbie said:

Thank you firsthardcheese and usctrojanalum.

 

I'm writing a few notes and talking points for myself, just to be ready. You never know what the opposing side will do, so I want to be as prepared as possible.

I'm hopeful because they haven't filed any sort of motion against my motion. However, the attorney's office called me the other day and I refused to speak to them over the phone. Was that a mistake? They claimed they needed to verify some things in advance, including the last 4 of my social. I declined to provide that info and told them if they had anything to say to me the proper channel would be court or certified mail.

It never hurts to see what they want.  I always listen to them.  It doesn't mean you have to talk or agree to anything.  I listen and if it sound intriguing (like maybe they want to dismiss everything) I ask for them to send it in an email so I can go over it and have a day or 2 to respond.

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8 minutes ago, Miss Abbie said:

However, the attorney's office called me the other day and I refused to speak to them over the phone. Was that a mistake?

You are a self-represented party without an attorney, correct? Opposing party attorneys often talk to each other to discuss the case. 

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3 hours ago, Brotherskeeper said:

You are a self-represented party without an attorney, correct? Opposing party attorneys often talk to each other to discuss the case. 

This is true. But I felt uncomfortable with the questions they wanted me to answer in order to "verify" they were indeed talking to me.

When they asked for the last 4 of my social, I was done with the conversation.

I don't trust them and conversations they can potentially use against me in court later on are recorded.

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On 3/29/2019 at 1:14 AM, fisthardcheese said:

Most of the info you need is right in your MTC.  Bring a copy of it with you (or 3 just in case the attorney or judge claims to not have one).  Also bring a copy of your card agreement and highlight the relevant parts so you can find them easier if they attorney tries to say that arbitration does not apply to them or something along those lines.

Also, if you have any specific case laws from your state that show that a court MUST grant arbitration when a valid agreement exists, I would print that and bring it too.

At this stage, you should know that the ONLY argument that should be discussed in court is whether or not the arbitration agreement you have is valid.  All case laws will say that if it is valid, then the court MUST allow arbitration.  If the other side does not file any opposition or objection before your court date, then I would ask the judge to grant your MTC as UNOPPOSED.  And if they attempt to orally argue against arbitration without having filed an opposition or objection, I would OBJECT to their opposition as untimely (look up your court's rules on motions and see what kind of time limit they have to file an opposition to your motion and if they missed that time frame, cite the court rule in your objection and ask for the motion to be granted as unopposed).

Does what I have posted below mean the plaintiff had 20 days to respond to my MTC?

 

 

 

Quote

 

Section 208.21 Objection to applications for special preference.

(a) Within 20 days of the filing of the notice of trial, if the notice of motion for a special preference is filed therewith, or within 10 days of the service of a notice of motion to obtain a preference, if served and filed subsequent to service and filing of the notice of trial, any other party may serve upon all other parties and file with the clerk affidavits and other relevant papers, with proof of service, in opposition to granting the preference. In the event such opposing papers are filed, the party applying for the preference may, within five days thereafter, serve and file in like manner papers in rebuttal.

(b) In any action which has been accorded a preference in trial upon a motion filed with the clerk, the court shall not be precluded, on its own motion at any time thereafter, from restoring the action to its regular calendar position on the ground that the action is not entitled to a preference under these rules.

(c) Notwithstanding the failure of any party to oppose the application, no preference shall be granted by default unless the court finds that the action is entitled to a preference.

 

 

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Guest usctrojanalum

It does not. When someone brings an application for a special preference, they are asking the court to hear a case faster because they are terminally ill, or really old etc., things like that. 

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I return to court tomorrow and  have not received anything from the plaintiff or court saying my MTC is being opposed. Still, not knowing what will happen tomorrow, I want to be prepared for the other side to argue against it. As suggested by @fisthardcheese, I've been trying to find out whether the plaintiff had a certain amount of time to respond to my MTC, but so far have been unable to find out anything via the New York Courts website I've been visiting, or Google in general.

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Guest usctrojanalum

You may state generally that you have not received any opposition to the motion and that you would like it submitted for a decision.

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Okay, don't laugh, but I am trying to write out a small defense statement in case the plaintiff opposes my MTC by claiming I waived my right to ask for arbitration.

Below is what I have so far. I may only read some of it if necessary. Let me know what you guys think.

Quote

 

Defendant did not waive right to Arbitration and has not enjoyed benefits up to this point that would not have been available in arbitration. Defendant seeks Arbitration now, because she did not know the option existed until plaintiff provided the card agreement, which governs the account from which plaintiff's allegations are based upon.

Defendant immediately sought to Stay Proceedings and seek Arbitration once she learned it was not only an option, but highly favored one in the eyes of New York Courts, as referenced in Stark v. Molod Spitz Desantis.

 

 

 

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I found my twin. After my above question wasn't answered, I assumed it was bad/laughable, I get that a lot from the CLARO lawyers... so I went looking for a bit of motivation and found the below thread, where the OP was looking for the same advice concerning arguing her MTC to a judge. I found great answers to various arguments the plaintiff's attorney might bring up. I'm also happy to see the OP's case had a happy ending.  :)

@fisthardcheese and @Brotherskeeper

 

 

 

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