BitsyM

Help Please. Being Sued in MI by Cavalry for Past Debt

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Revised MTCA.

I made the suggested changes.

Thank you for any suggestions :)

 

Is there anything that I need to have notarized as being a "true" document, or an affidavit as to the Card Agreement being the correct one with the arbitration agreement, as the Plantiff's attorney only included a signature from a Citibank rep for the Bill of Sale? The Bill of Sale that has no mention of any individual account number, and is dated 06/27/2016.

MTCA 05.10.2019.docx

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6 minutes ago, BitsyM said:

Is there anything that I need to have notarized as being a "true" document, or an affidavit as to the Card Agreement being the correct one with the arbitration agreement, as the Plantiff's attorney only included a signature from a Citibank rep for the Bill of Sale?

The Card Agreement was attached to their Complaint as an exhibit. It is a part of their pleading. You are using their document so you do not need to swear to anything about it via an affidavit. They are claiming it is the correct agreement or contract.

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@BitsyM 

"NOW COMES XXXXXXXX, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Citibank, N.A./Citi Simplicity Card Account Agreement,"

That's not what the Complaint or the Card Agreement states. Why offer this information at all?  I would take the bold language out if I were in your shoes. Refer to it as Citibank, N.A. unless you have a good reason for adding in information that the plaintiff has failed to do.

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@BitsyM First, you've left off the word "Exhibit" and it's letter identification. I believe you should send and refer to Certified Mail Return Receipt Requested, rather than certified mail. 

"3.    Defendant sent a letter via USPS certified mail to Plantiff’s attorney on May 10, 2019, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration.  A true copy of the written election notice is filed and served as Defendant’s XXXX "

Also, you included a copy of the proposed order for your motion to compel with the letter. so you could say something like:

 

3.   Defendant sent a letter via USPS Certified Mail Return Receipt Requested (CMRRR) to Plantiff’s attorney on May 10, 2019, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration. A copy of the Proposed Order for this Motion was enclosed with Defendant's arbitration election notice. A true copy of the written election notice and Proposed Order are attached herein as Defendant’s Exhibit A. 

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@BitsyM You wrote:

"4.    Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached)." This is Plaintiff's exhibit, not yours.

This is more accurate:

4.     Defendant moves this Court to compel binding Private Contractual Arbitration based on the terms and conditions of the Card Agreement, (Pl.'s Ex. pp. 9-13), pursuant to MCR 2.116(C)(7).

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@BitsyM It's important to stay consistent so it doesn't appear to be a cut and paste job. Did you verify that the Agreement's terms are from Plaintiff's exhibit?

5.    The parties are bound by the Credit Card Agreement. The Card Agreement's Arbitration clause states among other things:

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@BitsyM Motion Page 4:  Do you think this exerpt is necessary to include? If so, why?

"e.    Any arbitration hearing that you attend will be held at a place chosen by the arbitration firm in the same city as the U.S. District Court closest to your then current billing address, or at some other place to which you and we agree in writing.  If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing.  All other fees will be allocated as provided by the rules of the arbitration firm and applicable law."

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@BitsyM I'd suggest you split your paragraph 4 into 2 as shown:

4.     The Supreme Court emphasized in its decision in AT&T Mobility L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " Id.

 

5.     The Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15, governs actions in both federal and state courts arising out of contracts involving interstate commerce. Burns v. Olde Discount Corp., 212 Mich App 576, 580, 538 N.W.2d 686 (1995). State courts are bound under the Supremacy Clause, US Const, art VI, § 2, to enforce the substantive provisions of the federal act. Kauffman v Chicago Corp, 187 Mich App 284, 286; 466 NW2d 726 (1991). To ascertain the arbitrability of an issue, a court must consider whether there is an arbitration provision in the parties' contract, whether the disputed issue is arguably within the arbitration clause, and whether the dispute is expressly exempt from arbitration by the terms of the contract. Burns, supra, at 580.  Any doubts about the arbitrability of an issue should be resolved in favor of arbitration. Id. In the present case, all three of the requisites to arbitration are established.  There is a written arbitration clause that is part of a valid written contract. The claims at issue fall under the scope of the arbitration clause. Defendant, at the first opportunity, has sought to compel arbitration as permitted in the Card Agreement's "How Arbitration Works" section.  (Pl.'s Ex., pp 10-11).

6.     The Defendant elects arbitration with JAMS to settle these disputes.

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11 minutes ago, BitsyM said:
 

@BrotherskeeperMade the suggested edits and fixed my numbering.  

 

I'm open to any final revisions.

 

I can't thank you enough.

 

MTCA Revised 05.10.2019 .pdf 72.49 kB · 0 downloads

DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO
DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

You need to title this as Defendant's Motion

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@BitsyMWeren't you served on or around April 22, 2019? Your answer is beyond the deadline if it was March 18! 

 

1. Defendant was personally served with the Summons and Complaint in the above-captioned matter on or about March 18, 2019. Plaintiff alleges it is an assignee of Defendant’s account with Citibank, N.A. Attached as a Complaint exhibit is a “CARD AGREEMENT” that the Plaintiff asserts is the contract that governs the subject account. This Card Agreement contains a binding Arbitration provision (Plantiff’s Exhibit, pages 9-13), incorporated herein by reference.

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That was a typo.  I was served on 04/23, so I am good to go, but thank you for catching that.  I'm going to finish up everything that will be filed and sent, then post it all for review.

I'm filing my answer and mailing everything on Monday morning.  I will be waiting outside the court because like the procrastinator that I am, I waited until the last minute....

 

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6 minutes ago, BitsyM said:
 

That was a typo.  I was served on 04/23, so I am good to go, but thank you for catching that.  I'm going to finish up everything that will be filed and sent, then post it all for review.

 

Whew. It's good to post the final draft just in case something slipped through. 

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@BitsyM  Below are some Michigan court rules (MCR) that apply to what you're doing, so you should be familiar with them if you aren't already. Because you were served personally [MCR 2.105(A)(1)] with the Summons and Complaint, your Answer is due in court within 21 days [MCR 2.108(A)(1)], not counting the day you were served. [MCR 1.108(1)].  There's no rule (I know of ) that a motion to compel arb must be filed simultaneously with your Answer, especially since you decided to send plaintiff a Proposed Order, to accept or reject, along with an arb election letter.

(IANAL) If you send the arb election notice and the Proposed Order to plaintiff CMRRR before filing the MTC with the court and scheduling a hearing date, you give plaintiff the opportunity to stipulate to or reject the Proposed Order within 7 days. [See MCR 2.119(D)(2)(b)] If they stipulate (unlikely) to the order, you do not have to pay the motion fee [see MCR 2.119(G)(3)(e)]. If after 7 days they do nothing, you can file the motion with the court, pay the $20 motion fee and schedule the hearing, and serve plaintiff with proof of service form filed to court. You'll need to edit your MTC arb to include a new paragraph with similar language and an affidavit [See MCR 2.119(A)(4)] as follows: "The attorney for Plaintiff was contacted for concurrence with the relief sought in this Motion. A copy of the Proposed Order that accompanies this Motion was served by USPS Certified Mail Return Receipt Requested on May XX, 2019. Defendant received no response from Plaintiff. True copies of the Proposed Order and CMRRR mailing receipt are attached to the Affidavit of BitsyM as Defendant's Exhibit B."

RULE 2.116 SUMMARY DISPOSITION [Chapter 2. Civil Procedure Page 48 Last Updated May 1, 2019]
(A) Judgment on Stipulated Facts.
     (1) The parties to a civil action may submit an agreed-upon stipulation of facts to the court.
     (2) If the parties have stipulated to facts sufficient to enable the court to render judgment in the action, the court shall do so.

(B) Motion.
     (1) A party may move for dismissal of or judgment on all or part of a claim in accordance with this rule. A party against whom a defense is asserted may move under this rule for summary disposition of the defense. A request for dismissal without prejudice under MCL 600.2912c must be made by motion under MCR 2.116 and MCR 2.119.
     (2) A motion under this rule may be filed at any time consistent with subrule (D) and subrule (G)(1), but the hearing on a motion brought by a party asserting a claim shall not take place until at least 28 days after the opposing party was served with the pleading stating the claim.

(C) Grounds. The motion may be based on one or more of these grounds, and must specify the grounds on which it is based:
      (7) Entry of judgment, dismissal of the action, or other relief is appropriate because of ...an agreement to arbitrate or to litigate in a different forum,...

(D) Time to Raise Defenses and Objections. The grounds listed in subrule (C) must be raised as follows:
     (2) The grounds listed in subrule (C)(7) must be raised in a party's responsive pleading, unless the grounds are stated in a motion filed under this rule prior to the party's first responsive pleading...

RULE 2.119 MOTION PRACTICE
(A) Form of Motions.
     (1) An application to the court for an order in a pending action must be by motion. Unless made during a hearing or trial, a motion must :  (a) be in writing, (b) state with particularity the grounds and authority on which it is based, (c) state the relief or order sought, and (d) be signed by the party or attorney as provided in MCR 1.109(D)(3) and (E).
     (2) A motion or response to a motion that presents an issue of law must be accompanied by a brief citing the authority on which it is based, and must comply with the provisions of MCR 7.215(C) regarding citation of unpublished Court of Appeals opinions. 
          (b) Except as permitted by the court or as otherwise provided in these rules, no reply briefs, additional briefs, or supplemental briefs may be filed.
          (c) Quotations and footnotes may be single-spaced. At least one-inch margins must be used, and printing shall not be smaller than 12-point type.
          (d) A copy of a motion or response (including brief) filed under this rule must be provided by counsel [or pro se] to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE’S COPY on the cover sheet; that notation may be handwritten.
     (3) A motion and notice of the hearing on it may be combined in the same document.
     (4) If a contested motion is filed after rejection of a proposed order under subrule (D), a copy of the rejected order and an affidavit establishing the rejection must be filed with the motion.

(C) Time for Service and Filing of Motions and Responses.
     (1) Unless a different period is set by these rules or by the court for good cause, a written motion, ... notice of the hearing on the motion, and any supporting brief or affidavits must be served as follows:
           (a) at least 9 days before the time set for the hearing, if served by first-class mail, or
           (b) at least 7 days before the time set for the hearing, if served by delivery under MCR 2.107(C)(1) or (2) [handing it to the attorney personally, serving it electronically, e-mailing it to the party with permission] or MCR 1.109(G)(6)(a). [Electronic Filing and Service.]
(D) Uncontested Orders.
     (1) Before filing a motion, a party may serve on the opposite party a copy of a proposed order and a request to stipulate to the court's entry of the proposed order.
     (2) On receipt of a request to stipulate, a party may
          (a) stipulate to the entry of the order by signing the following statement at the end of the proposed order: “I stipulate to the entry of the above order”; or
          (b) waive notice and hearing on the entry of an order by signing the following statement at the end of the proposed order: “Notice and hearing on entry of the above order is waived.” A proposed order is deemed rejected unless it is stipulated to or notice and hearing are waived within 7 days after it is served.

(G) Motion Fees. [$20] The following provisions apply to actions in which a motion fee is required:
     (1) A motion fee [$20~waived if indigent upon court approval by application] must be paid on the filing of any request for an order in a pending action, whether the request is entitled “motion,” “petition,” “application,” or otherwise. 

     (3) A motion fee may not be charged:

          (b) for a notice of settlement of a proposed judgment or order under MCR 2.602(B);
          (e) for entry of an uncontested order under subrule (D).

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Thank you.  I'll file my answer and send the appropriate documents to the lawfirm.  Wait the seven days.  If no response, I'll file the revised motion.

Fingers-crossed.

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54 minutes ago, BitsyM said:
 

@Brotherskeeper If you have a free moment, can you take a look at my Civil Answer?  I'm feeling super nervous that I'm going to have something incorrect and then all of the work drafting the MTCA will have been for nothing.

Thank you in advance.

Civil Answer and Affirmative Defense.docx 36.61 kB · 0 downloads

You wrote:"1.    Defendant is at this time without information or knowledge sufficient to form an opinion as to the truth of statement in paragraph 1."

***(IANAL) To be safe, I would add "and therefore denies" 

"1.     Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation, and therefore denies." 

 

***Affirmative Defenses section should immediately follow your Answer section. 

***Your Answer should include this statement after the "Wherefore, Defendant" statement, with your signature below it. 

I declare under the penalties of perjury that this Answer has been examined by me and that its contents are true to the best of my information, knowledge, and belief.

***The certificate of service should go at the very bottom of the final page. I know this is a fill-in form, but I'd put the Affirmative Defense section right after the Answer. That way it won't be overlooked. 

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@Brotherskeeper- filed Civil Answer at the court.

I'm mailing the plantiff's attorney a copy of the answer (CMRRR) in one envelope.

In a separate envelope I am sending (CMRRR) the arbitration election letter and the proposed order.  Should the arbitration election or proposed order have proof of service language?

Proposed Order MTCA 05.13.2019.docx Notice of Arbitration Election 05.13.2019.docx

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24 minutes ago, BitsyM said:

I'm mailing the plantiff's attorney a copy of the answer (CMRRR) in one envelope.

Rules don't require you to mail Answer to plaintiff by CMRRR, but you must mail it on the date and by the method you swore to on your certificate of service form included your court-filed Answer. 

[PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION

If it isn't too late, the correct title is [PROPOSED] ORDER FOR , not GRANTING, Defendant's motion. If you already have it ready to go, don't worry about it.

29 minutes ago, BitsyM said:

Should the arbitration election or proposed order have proof of service language?

The arbitration election notice and the proposed order are not yet court documents. (All documents you file with the court have to have copies sent to the opposing party out of fairness. The certificate of service is your sworn statement to the court that you sent it and by what method.)  You are sending a letter to the plaintiff and a courtesy copy of the proposed order for plaintiff to accept or reject. It will later beome a court document, depending on whether it's accepted or rejected. This outcome will determine whether you have to file the motion to compel. 

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@BitsyM I don't think it's necessary to quote so much text from the Card Agreement's arbitration section in your election notice letter. It's their exhibit. You quote this passage without asking them to advance or reimburse your filing fee. If you didn't intend to ask, why include it at all?

 "The agreement further states, “If you have paid the initial filing fee and you prevail, we will reimburse you for that fee.  If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing.  All other fees will be allocated as provided by the rules of the arbitration firm and applicable law.  However, we will advance or reimburse your fees if the arbitration firm or arbitrator determines there is a good reason for requiring us to do so, or if you ask us and we determine there is a good reason for doing so."

You haven't included anything in your letter about the enclosed Proposed Order for their concurrence.  

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1 hour ago, BitsyM said:

In a separate envelope I am sending (CMRRR) the arbitration election letter and the proposed order.

Once you have the signed return receipt, you can start the clock on their time to respond to the proposed order. 

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I caught the Answer reading certificate of service via first class mail and sent it as such.

 

I sent the arbitration election notice and the proposed order as attached above via CMRRR.  So, that was a slight goof.  Too much unnecessary quoting and no mention of the Proposed Order (just included it in the envelope with the arbitration election).

 

Can I do anything to fix it, or do I just wait until I receive the return receipt receipt, count down 7 days, then file my revised MTCA?

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44 minutes ago, BitsyM said:
 

I caught the Answer reading certificate of service via first class mail and sent it as such.

 

I sent the arbitration election notice and the proposed order as attached above via CMRRR.  So, that was a slight goof.  Too much unnecessary quoting and no mention of the Proposed Order (just included it in the envelope with the arbitration election).

 

Can I do anything to fix it, or do I just wait until I receive the return receipt receipt, count down 7 days, then file my revised MTCA?

You also alerted plaintiff's attorney in your Affirmative Defense #1 to expect an arb election notification from you, although you didn't specify how.  "Defendant has notified Plaintiff via its attorney of her election of a private arbitration forum pursuant to the terms of the Card Agreement."

If plaintiff intends to stipulate to arbitration, they'll very likely contact you. At the end of the 7 days, if you like, you could call the attorney to discuss their intentions. If you have to file the MTCA, your affidavit would include how you sought concurrence and that it was denied. 

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