BitsyM

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

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@Brotherskeeper I cannot thank you enough for all of your help.   I am grateful for all of your time and knowledgeable suggestions.  Thank you!

 

Now, I wait....

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@Brotherskeeper- I received no stipulation, so I am heading to the court to file the MTCA.  Can you review it for me?  I added in the part about having sent the Plaintiff the Arbitration Election and the Proposed Order.  I added the Certificate of Service. 

 

I am going to include the copies of the Election Notice and Proposed Order titled as Exhibit A.  Should Exhibit B just be the CMRRR receipt?  

 

MTCA 05.24.19.docx

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On 5/10/2019 at 4:14 PM, Brotherskeeper said:

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

The motion title has not been fixed. You have to indicate that it is the Defendant's motion.

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@BitsyM You should capitalize Court when referring to the court you are in. It's a sign of respect. 

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

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@BitsyM See correction for Motion to Compel below:

"3.    Defendant sent a letter via USPS Certified Mail Return Receipt Requested to Plantiff’s attorney on May 13, 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 the Defendant’s arbitration election notice.  A true copy of the written election notice, Proposed Order and signed Return Receipt are attached to the affidavit of BitsyM as Defendant’s Exhibit A."

 

 You've cut and pasted an affidavit for an account stated claim. You're being sued on a breach of contract claim. Affidavit needs a rewrite.

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@BitsyM Did you receive a copy of the signed USPS return receipt? This is proof that someone at the law firm received the election notice and the Proposed Order. 

"8.    The attorney for Plaintiff was contacted for concurrence with the relief sought in the Motion.  A copy of the Proposed Order that accompanies this Motion was served by USPS Certified Mail Return Receipt Requested on May 13, 2019.  Defendant received no response from Plaintiff.  True copies of the Proposed Order and CMRRR mailing receipt are attached to the Affidavit of xxxx as Defendant’s Exhibit B."

IANAL. Here's a suggestion:

8.   The attorney for Plaintiff was contacted for concurrence with the relief sought in the Motion. A copy of the Proposed Order that accompanies this Motion was served by USPS Certified Mail Return Receipt Requested on May 13, 2019, and signed for on May XX, 2019. (Def.'s Aff. Ex. A) Defendant received no response from Plaintiff prior to the filing of this Motion.

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@BitsyM

AFFIDAVIT of XXXXXXXXXXXXXX

NOW COMES Defendant in Pro Per, XXXXXXXXXX, whose residence is xxxxxxxxx, certifies and says:

1. I am a resident of the State of Michigan, Oakland County, and I am a competent person over 18 years of age.  This affidavit is voluntarily made on my personal knowledge and, if sworn as a witness, I can testify to the facts in this affidavit.

2.  On April 23, 2019, I was personally served a summons and complaint in this case.

3.  On May 13, 2019, I sent a letter by USPS certified mail return receipt requested (CMRRR) to Plaintiff's attorney notifying Plaintiff of my intent to exercise my contractual right to elect private contractual arbitration via JAMS, as per the account agreement's Arbitration Clause. A true and correct copy of the letter and CMRRR receipt is attached as Exhibit B. See text below for my suggestions:

3.  On May 13, 2019, I sent a letter by USPS certified mail return receipt requested (CMRRR) to Plaintiff's attorney notifying Plaintiff of my intent to exercise my contractual right to elect private contractual arbitration via JAMS, as per the Account Agreement's Arbitration Clause. I also enclosed a copy of a Proposed Order for Plaintiff to stipulate to or reject. The election letter and Proposed Order were signed for on May XX, 2019. As of today, I have had no communication from Plaintiff about the concurrence sought in the Proposed Order.  A true and correct copy of the election letter, Proposed Order and the signed CMRRR receipt are attached herein as Exhibit A.

4.  Plaintiff Cavalry SPV I, LLC, never extended credit to me.

5.  There have been no transactions or course of dealing between Plaintiff Cavalry SPV I, LLC and I.

6.  I deny there is presently due and owing to Plaintiff Cavalry SPV I, LLC the sum of $XXXXXXX.

7.  I voluntarily elect to exercise my contractual right to have the disputes of this account and the disputed amount of $XXXXXXX to be resolved by a JAMS arbitrator rather than in this Court.  

8.  I voluntarily elect to exercise my contractual right to have the disputes of this account and the disputed amount of $XXXXXXX to be resolved by a JAMS arbitrator rather than in this Court. 

 

Pursuant to 28 U.S.C. § 1746(2), I declare under penalty of perjury that the foregoing is true and correct., that this affidavit is made on my personal knowledge and, if sworn as a witness, I can testify competently to the facts in this affidavit.
 

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On 5/11/2019 at 3:26 PM, Brotherskeeper said:

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.

@BitsyM The affidavit that accompanies your MTC is to comply with MCR 2.119(A)(4). It also is your sworn testimony that you mailed the election letter and Proposed Order with proof of its receipt by the Plaintiff. 

Don't forget that you have to include an additional copy of the motion papers marked "Judge's Copy" as the rules above state. 

 

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