AlawsoabA1221

Help ASAP! Ohio - Crown Asset Mgt Complaint - $ owed from CC

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I am unable to scan & post complaint until tomorrow as I dont have any way to do so at home. 

 

Crown Asset mgt, LLC filed 2 complaints in my county court (oh which I now reside. Both accounts were opened under old address and they wouldnt update my new address upon request over the phone.) of $ owed from charged off cc with Synchrony Bank. The complaints include an agt dated 7/5/17 between Synchrony & Crown. They also include cc statements of my last payment (apr 2017) continuing through 2018, however, there is NO ACCOUNT # listed in the complaints nor on the statements. The account # listed is "xxxxxxxxx" on the complaints. I was served via certified mail on a sat via post office (I was in mid nap w the kids when I heard knock & i thought post office was delivering amazon package like they did before). 

 

What's my best response options? 

- can I request motion to dismiss or can I only request more info (whatever legal term is) for plaintiff not listing acct & not providing a response as to why? 

- motion to dismiss or compel arbitration? (I dont know how to find my agt to view the arbitration clause since they will not let me log into my account once it charged off but I know there is arbitration clause). 

- can I deny $ owed since the agreement they included is dated 7/2017 yet I was still being charged by synchrony after 7/2017 ?(complaint $ amount matches statement balance) 

- can I also deny $ owed as company did not purchase full debt amount from orig creditor, it purchased for pennies on the dollar amount ?(complaint $ amount matches statement balance) 

- I have never received debt val letters from synchrony nor this plaintiff regarding these 2 accounts. (They had to find my new address via a previous complaint & judgment in my county from 6mo ago w a diff plaintiff & since they wouldnt update my address over the phone) but  I still havent received debt val letters from this plaintiff at this new address). I DID RECEIVE debt val letters on this same day via regular mail from LVNV (aka Resurgent) of 3 other synchrony bank accounts). 

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4 minutes ago, AlawsoabA1221 said:

can I request motion to dismiss or can I only request more info (whatever legal term is) for plaintiff not listing acct & not providing a response as to why? 

You can do both but it will only delay the inevitable judgment.  The MTD will be denied and as of late the motion for more definitive statement won't be granted.

5 minutes ago, AlawsoabA1221 said:

- motion to dismiss or compel arbitration?

Synchrony has the best arbitration clause. You can find the copy of the one active when you defaulted at the CFPB archives.

6 minutes ago, AlawsoabA1221 said:

can I deny $ owed since the agreement they included is dated 7/2017 yet I was still being charged by synchrony after 7/2017 ?(complaint $ amount matches statement balance) 

You can but it won't work.

6 minutes ago, AlawsoabA1221 said:

can I also deny $ owed as company did not purchase full debt amount from orig creditor, it purchased for pennies on the dollar amount ?

NO.  What they paid the creditor is irrelevant.  Under basic contract law when they purchased the account they got all rights and responsibilities of the original creditor which includes being able to sue you for the entire amount owed at the time of purchase regardless of what they paid.

7 minutes ago, AlawsoabA1221 said:

I have never received debt val letters from synchrony nor this plaintiff regarding these 2 accounts.

They are not required to send a DV letter prior to suing you.  They can go straight to court.

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10 minutes ago, Clydesmom said:

Synchrony has the best arbitration clause. You can find the copy of the one active when you defaulted at the CFPB archives.

I am going to view it now. Does best clause mean it's best for me or them? Is this a "good" strategy? 

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So I found the agreement, thank you for informing where to locate. Is the beat strategy for synchrony to MFD on arbitration clause? Maybe I interpreted the clause incorrectly, it seems to say they will not require to arbitrate as long as do not respond to complaint alleging any wrong doing?? (Amazon & Walmart store cards)

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2 hours ago, AlawsoabA1221 said:

Is the beat strategy for synchrony to MFD on arbitration clause?

NO. Again, you are not going to get a dismissal that way.  You have to answer the suit.  Then you have to file a MTC arbitration.  IF/WHEN that gets approved by the court the Plaintiff will dismiss the suit because they don't want the expense of arbitration.  

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I apologize, I tried to delete this thread because I saw the other thread was posted. I thought i deleted it before this post was created, but then I found it after I created this one. I was simply trying to delete it to avoid duplication. My bad. 

 

Again, sorry for questions that u think I should know the answer to. Upon reading the other threads in regarding this topic, I see where people say to to to MFD then others who say to do Compel along with answers. It's very confusing when u get directed to 3-4-5 diff threads while reading 1 thread then trying to go back to the correct thread you were on etc. I am trying to ensure I interpret the multiple answers correctly & to avoid me asking more questions. 

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Is anyone willing to view this to see if it's ok for response to complaint? (Ohio Mun court) -  (I can post copy of complaint in the morning -  but it states what I outlined in my original post above).

I was able to post attachment of what I found via my court's rules to see if I need to exclude/include anything based upon these that I've missed. 

 

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

Comes now the Defendant, (My Name) pro se, and submits the following answer to Plaintiff's complaint.

1) Defendant ADMITS she is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides litigation rights in court.

2) Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's paragraphs (2-7) and must respectfully DENY Plaintiff's remaining allegations.

 

AFFIRMATIVE DEFENSES

1) Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter.

2)  Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has notified Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Synchrony Bank agreement.

 

  Respectfully submitted this day, April ____, 2019

(My Name), Defendant, pro se

 

CERTIFICATE OF SERVICE

A copy of the foregoing was served on this _____  day of  __________________, 20___ pursuant to:  Civ.R. 5(B)(2)(c) by U.S. regular Mail, postage prepaid to (Attorney and address)

Rules of Practice and Procedure of Municipal Court (PDF).pdf

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MTC Arbitration (copy & paste changes formatting so please disregard those issues).  Dont kill me for all my questions:) 

<Copy of my court rule below> Did I adhere to this rule correctly? 

<Motions: All motions must be in writing and accompanied by a written memorandum containing citations or the arguments of counsel. Opposing counsel shall answer in like manner within 
fourteen (14) days thereafter. All motions shall be considered submitted at the end of said fourteen (14) day period, unless 
time is extended by the Court. There shall be no oral hearings granted concerning said motions unless a party requests an 
oral hearing in writing and the court deems it necessary, or unless upon the Court's own motion, the parties are requested 
to orally argue the motion.>

 

WHERE & HOW do I include in this motion a request was sent in writing? Or PER THIS CLAUSE on how to notify, do I add Synchrony as a plaintiff along with complaint plaintiff?? < that may be a dumb question but I didnt know who to actually list as plaintiff if my MTC separate from my complaint response> 

 

Do I need to include where I obtained my cardholder agreement from? (From CFPB site). 

I file this along w my complaint response, Walmart_Credit_Card_Account_Agreement_and_Pricing_Information.pdfat the same time, correct? 

 

IN THE IN THE (City) MUNICIPAL COURT 

 

(County, State)

 

 

 

                                                                   

 

:

 

CASE NO.                                                           

 

 

 

:

 

 

 

Plaintiff

 

:

 

JUDGE                                                                

 

 

 

:

 

 

 

v.

 

:

 

 

 

 

 

:

 

 

 

                                                                   

 

:

 

 

 

 

 

:

 

 

 

Defendant

 

:

 

 MOTION TO COMPEL ARBITRATION AND FOR A STAY PENDING ARBITRATION

 

 

 

 

 

 

 

 

 

 

 

NOW COMES Defendant (My Name), appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about March 4, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement, which contains an Arbitration Clause  that states, among other things:

   


(a) If either your or we make a demand for arbitration, you and we must arbitrate a dispute or claim between you or any other use of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below. 

(b). 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.

(c). Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

((((((((((Can I omit any part or this part of clause????

No Class Actions

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE. 

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

• 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, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator. 

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.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced. ))))))))))

 (d). 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. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

 

Law and argument

 

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.


Ohio Revised Code Section 2711.01(A) states that "A provision in any written contract . . . 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 . . . shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or equity for the revocation of any contract."

Ohio public policy favors the enforcement of private arbtitration agreements. Kelm v. Kelm (1993), 68 Ohio St.3d 26, 623 N.E.2d 39.
See also, N. Ohio Sewer Contrs., Inc. v. Bradley Dev. Co. (2005), 159
Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650; Junkins v. Spinnaker
Bay Condominium a&#036;&#036;'n., Ottawa App. No. OT-01-007, 2002-Ohio-872. Any
uncertainty that exists with regard to the applicability of an arbitrationclause should be resolved in favor of coverage. Id. An arbitration clause should not be denied effect unless it can be determined to a high degree of
certainty that the clause does not cover the asserted dispute. Owens Flooring Co. v. Hummel Constr. Co. (2000), 140 Ohio App.3d 825, 749 N.E.2d 782.
See also Willis v. Linnen, Summit App. No. 20775, 2002-Ohio-2000. The law favors and encourages arbitration. Brennan v. Brennan (1955), 164 Ohio St. 29, 128
N.E.2d 89.
 
Request for a Stay Pending Arbitration

The Defendant asks that this case be stayed pending arbitration. Ohio
Revised Code Section 2711.02(B) states: "If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied
that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the
parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement . . ." (Emphasis added.)

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, April ____, 2019 

(My Name), Defendant, pro se

 

 

CERTIFICATE OF SERVICE

A copy of the foregoing was served on this _____  day of  __________________, 20___ pursuant to:  Civ.R. 5(B)(2)(c) by U.S. regular Mail, postage prepaid to (Attorney and address)

 

 

 

 

Amazon.com_Store_Card_Account_Agreement_and_Pricing_Information.pdf

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12 hours ago, AlawsoabA1221 said:

3. The parties are bound by the Credit Card Agreement, which contains an Arbitration Clause  that states, among other things:

   


(a) If either your or we make a demand for arbitration, you and we must arbitrate a dispute or claim between you or any other use of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account

The only thing I would include in paragraph 3 for your MTC is the following:

3. The parties are bound by the Credit Card Agreement, which contains an Arbitration Clause that states,

          "If either your or we make a demand for arbitration, you and we must arbitrate a dispute or claim between you or any other use of your account, and us, our affiliates, agents
          and/or Amazon.com if it relates to your account"

There is no need to include a ton of irrelevant info from the agreement.  This one line in enough to show that a valid arbitration agreement clause is present.

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Ty so much!! I was wandering if I was able to omit lot of info.

 

Doo I just highlight the section in the exhibit that i called out in the motion?

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I have 2 more questions:) If I'm attaching an affidavit, do I have to include the affidavit as well in at the end of my signature of the motion?

 

Of course, my court requires a memorandum for motions. I found a post discussing this topic (on a desktop & I cant seem to find it here on my phone). The poster mentioned to view post# 165 & another post...how do I search post#?? I cant seem to figure it out. 

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5 minutes ago, AlawsoabA1221 said:

Ty so much!! I was wandering if I was able to omit lot of info.

 

Doo I just highlight the section in the exhibit that i called out in the motion?

No. Do not mark on any exhibit at all. Just submit it in full.

3 minutes ago, AlawsoabA1221 said:

If I'm attaching an affidavit, do I have to include the affidavit as well in at the end of my signature of the motion?

I would file in this order (don't actually attach, unless by non-permanate means like a paperclip) 1. Motion to Compel, 2. Exhibits (Card Agreement) 3. Affidavit.

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2 minutes ago, AlawsoabA1221 said:

Yes, they recite the exact same language & both cardholder agreements appear to be the same. 1 for Amazon & 1 for Walmart

Alright, when you get your 2 separate MTC's granted, make sure that you file 2 separate JAMS cases and include copies of the Court's Order granting your MTC for each one.

Crown Management might attempt to ask JAMS to combine the cases, but we can deal with that if and when it happens.  The 2 separate MTC orders will help you deal with that.

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16 hours ago, AlawsoabA1221 said:

Anyone able point me to the thread (#165) where it discussed adding a brief w mtc? I cannot find it

 

 

That doesn't help much if we don't know the thread you are looking at.  But to me, it looks like your MTC includes essentially a brief incorporated into it.  Here is an OH thread from a recent case.  Maybe @MikeB35 can chime in to help you out.

 

 

 

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@AlawsoabA1221 Here is an Ohio attorney white paper on compelling arbitration. Michigan has a similar rule that a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based. However, Michigan also has case precedent that a motion that doesn't have the brief need not be denied if the motion itself contains the grounds and authority under which its brought. I don't know about Ohio case law on this issue. Recently, a few Ohioans on this forum have had MTCs granted using @fisthardcheese 's template modified to include Ohio-specific citations mentioned in this paper, without submitting a brief/memorandum:

https://www.jacksonlewis.com/sites/default/files/docs/Compelling and Staying Arbitration in Ohio.pdf

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Ok....so hoping can explain this to me. I still do not fully understand the ENTIRE scope of the the Arbitration strategy  -  what is the chain of events to receiving a complaint to settling in arbitration/agt/payoff or never having to pay before SOL expires? 

How are we able to actually prevent arbitration & future suits (cases dismissed without prejudice)? 

 

 

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Here is the difference between an arb case and a non-arb case (debt collection case; note arb works best with JDB plaintiffs):

Non-arb case:  Plaintiff files complaint > Defendant answers > parties engage in discovery > Plaintiff files SJ motion (summary judgment) > SJ motion is granted, plaintiff gets judgment.

(Or, if the SJ motion is denied, there is a trial.  Or maybe the Plaintiff drops case is the Defendant is aggressive with discovery.  The outcome depends on a number of factors, including state law, the attitude of the court (is it pro-creditor? is the judge cozy with the lawyer?), the amount involved, the attitude of the law firm (how aggressive they are).  It's a crap shoot.  Some defendants win using court, while a lot of them lose.)

Arb case:  Plaintiff files complaint > Defendant answers > Defendant files MTC Arb > MTC Arb is granted, court case is stayed > Plaintiff has to use an expensive and unfamiliar  arb forum ($5000+) > maybe Plaintff gets arb award > Plaintiff gets arb award confirmed as judgment.

Arb makes the path to a judgment far more expensive and complicated than using the normal court method.  Note also that JDB attorneys are not usually legal scholars.  Going through arb, or even responding to a MTC Arb, is usually above their pay grade.   It's just not in the JDB business model to spend the money in arbitration to collect on an account they paid very little for.  It is their business model to drop the case and move on to the easier prey, meaning the default judgments.  The case usually ends after the MTC Arb is granted.  Chances are you won't even have to file in JAMS or AAA.

So the most likely outcome is a voluntary dismissal, without prejudice.  Yes, they can sue you again, but they probably won't.  Because they know you will file the MTC Arb again and cost them more money.  I don't think we have ever seen a case here where a JDB came back and sued again, on the same account, after a defendant used arb.

And the SOL clock keeps ticking, and the SOL will eventually run out.  And you didn't pay them anything.

 

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Thank you for the information. 

I was thinking more along the lines of new JDB & multiple complaints for defendants (different accounts) to stack up once companies scrub for defendants/accounts. 

Also was thinking corporations who who are "affiliated/contracted" with JDB (Synchrony/Resurgant) actually prefer Arbitration. Arbitration does not cost as much as perceived and take into account $amount it takes for arb v. $ to litigate (filing fees, billable hours etc.).  Based upon info learned at previous employer (I was not pervy to any details besides scheduling meetings, admin duties lol. I know company used to use JAMS & was using AAA before I left due to issue w JAMS, but I could not tell what diff is between the 2 or any details lol). 

 

I just didnt want to put in all this research/work etc. To get my hope's up only to be screwed in the end w garnishment bc I did something incorrectly or by a new JDB with the same result lol.  I am going to file my MTC & everything else tomorrow & read up on the next steps. 

 

Thanks for giving me hope

 

 

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Yea man, your going to want to file your answer to create your foundation moving forward for your MTC etc. Get all your drafts put together and post them here for proofreading. It looks like you have taken my template, and thats awesome I could help. Just make sure your court rules are ok with layout etc etc. This worked for my court, and I dont know how yours will take it. We all have had run ins and would be happy to help any way we can.

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Now, if you really want to discourage lawsuits, and collection efforts of all kinds, you want to get on WebRecon.  That is a list of people who sue debt collectors for violating consumer protection laws. 

You need to learn about these laws, especially the FDCPA, and know when collectors violate them.  And sue them when they do.  Consumer lawyers will take a good case at no charge.

I recommend sending a DV letter, by certified mail,  whenever you receive a dunning letter from a collection agency or attorney.  A common violation is continuing to attempt to collect without validating the debt.

But that's for the future.  Now you need to concentrate on the arb case.

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