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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1 hour ago, BitsyM said:

@Brotherskeeper- Is this affidavit okay?  I'm going to go and have it notarized at the bank before going to file the motion.

I'm having trouble with this download, so I can't read the affidavit. 

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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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@Brotherskeeper- Thank you!  I am sitting here trying to research affidavits for breach of contract and second guessing everything that I type.  I greatly appreciate the suggestions.

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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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@Brotherskeeper On Friday I went and had my affidavit notarized, then went to the court to file the MTCA.  I had my exhibits labeled.  Proof of service for the motion and a second set of all, labeled "Judge's Copy".  The attendant who helped me first asked me "where I had gotten the motion from".  I explained that I had prepared it on my own.  She then told me that I did not need a copy for the judge and to keep them.  She told me that I also needed a "Notice of Hearing" and that I could pay the $20 fee, but that the hearing would not be scheduled until I returned with that document.  I looked on the court website and could not find any form/document that matched.  She also gave me a few dates 06/03, 06/06, and 06/11.

 

Do you know where I can find this form?

 

2nd question- I received, from the court, a Pretrial Statement document.  I'm unsure how to fill this out, or what is needed.  The document states that the form must be "completely filled out to the clerk 10 days prior to the date of the hearing" and to "exchange with the other party(s)".  The only thing that I can see on here that has a spot to be "filled out" is my name and the date.  So, if I need to prepare a document, I don't know what the correct format would be, or if I need to include proof of service to the attorney for the plantiff?  I'm going to scan, redact, and upload what I received.  Am I correct in assuming that the 10 days would be the Pre-Trial date of 05/17/2019 that is on this Pretrial Statement?

 

So confused....

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On 5/10/2019 at 11:38 AM, Brotherskeeper said:

@BitsyM Here are the rules for motions. Your judge may or may not want her/his own copy marked as "Judge's Copy" see rule 2(d). I don't want to confuse you, but include these rules for clarity. 

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.

(a) Except as permitted by the court, the combined length of any motion and brief, or of a response and brief, may not exceed 20 pages double spaced, exclusive of attachments and exhibits.

(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 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.

 

On 5/10/2019 at 11:57 AM, Brotherskeeper said:

@BitsyM I gave this information to you with a link to the motion and notice of hearing form on May 10. On Friday, May 24, I posted the rule containing the notice and hearing requirement again.  I know this is very stressful, but you would do yourself a big favor by rereading your thread to see what you may have missed the first time. 

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25 minutes ago, BitsyM said:

2nd question- I received, from the court, a Pretrial Statement document.  I'm unsure how to fill this out, or what is needed.  The document states that the form must be "completely filled out to the clerk 10 days prior to the date of the hearing" and to "exchange with the other party(s)".  The only thing that I can see on here that has a spot to be "filled out" is my name and the date.  So, if I need to prepare a document, I don't know what the correct format would be, or if I need to include proof of service to the attorney for the plantiff?  I'm going to scan, redact, and upload what I received.  Am I correct in assuming that the 10 days would be the Pre-Trial date of 05/17/2019 that is on this Pretrial Statement?

Pre-trial date is Monday, June 17, 2019. The form has to be filed with the court clerk and served upon the opposing party at least 10 days prior to the hearing date. The doc you linked to has this in all caps and underlined. A proof of service certificate should be part of the filing with the court. The pre-trial statement must be prepared in compliance with MCR 2.401. 

Rule 2.401 Pretrial Procedures; Conferences; Scheduling Orders

(C) Pretrial Conference; Scope.

(1) At a conference under this subrule, in addition to the matters listed in subrule (B)(1), the court and the attorneys for the parties may consider any matters that will facilitate the fair and expeditious disposition of the action, including:

(a) the simplification of the issues;

(b) the amount of time necessary for discovery;

(c) the necessity or desirability of amendments to the pleadings;

(d) the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;

(e) the limitation of the number of expert witnesses;

(f) the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;

(g) the possibility of settlement;

(h) whether mediation, case evaluation, or some other form of alternative dispute resolution would be appropriate for the case, and what mechanisms are available to provide such services;

(i) the identity of the witnesses to testify at trial;

(j) the estimated length of trial;

(k) whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by MCR 2.203(A);

(l) other matters that may aid in the disposition of the action.

(2) Conference Order. If appropriate, the court shall enter an order incorporating agreements reached and decisions made at the conference.

***Very important to note that (in all caps) "THE COURT WILL ENTERTAIN A MOTION FOR DEFAULT JUDGMENT AND/OR DISMISSAL SHOULD EITHER PARTY FAIL TO APPEAR." You should be prepared to ask the judge to move that the case be dismissed if the attorney doesn't show up for the pre-trial. Just in case you luck out. 

You have a few days befor your Pre-trial Statement is due to research and come up with a draft. Start by rereading the the "PRETRIAL STATEMENT" section. You are the Defendant. You listed an agreement to arbitrate disputes as an Affirmative Defense on your answer. You filed and served a motion to compel and stay the case. You need to get your MTC arb scheduled ("noticed") for a hearing asap. 

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@Brotherskeeper- Thank you.  

 

I'm sorry for getting frazzled and not reviewing what you have already so graciously provided.  I jumped the gun and freaked out instead of actually looking at what was right in front of my face.

 

I'm going to read and prep this evening and then go from there.

 

I'm sure tomorrow I'll have more questions before my next trip to the court and the post office....

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1 hour ago, BitsyM said:

I'm sorry for getting frazzled and not reviewing what you have already so graciously provided.

I understand. It's a lot to take in. 

 

1 hour ago, BitsyM said:

I jumped the gun and freaked out instead of actually looking at what was right in front of my face.

I'm not trying to be a scold. It's critical for you to learn, as quickly as you can, to read very carefully. Best to make any mistake early so that it can be corrected; better still to avoid making the mistake at all. The stakes get higher once you're in front of the judge. 

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@Brotherskeeper- my feelings aren't hurt.  You can only help someone so much before they have to help themselves.

 

I completed the Notice of Hearing today and returned to the court and filed it.  Date and time set.  I filled out the second copy for the Plantiff's attorney and immediately sent it, via first class mail, as stated in the Notice of Hearing.

 

Date is set for 06/11.

 

Now I'm going to get moving on my Pre-trial Statement after I do some more reading in the Pre-Trial Statement section.  I hope to get it drafted tomorrow and filed with court/mailed to Plantiff on Friday.

 

I'll be back for review once I get that done :)

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@Brotherskeeper- I received my copy of the plaintiff's pre-trial statement.  I have drafted a cover letter and statement.  I know that I need to add the Proof of Service to the bottom of the statement.

 

Can you look at my draft and provide any feedback?

 

I am also going to attach a redacted version of the plaintiff's pre-trial statement in just a moment.

 

Thank you in advance for your help.  I've been working on getting my sh!t together and have assembled a binder with dates of receipt of all documents, when I mailed docs, tab for MCR that I followed, tab for Judge's Copies (if any are needed, tab for Motion, tab for Exhibits, etc.

Cover Letter PreTrial Statement Review Version.docx PRETRIAL STATEMENT Review Version.docx

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@BitsyM The instructions for #1 require ("shall") you to include affirmative defenses. (IANAL)

1.    FACTUAL STATEMENT OF DEFENDANT:

Plaintiff alleges Breach of Contract.  The “CARD AGREEMENT” attached to the Complaint (Plaintiff’s Exhibit) contains a binding Arbitration provision.  Defendant timely filed and served her Answer denying Plaintiff's allegations, and asserted as Affirmative Defense I, that the existence of a binding agreement to arbitrate disputes upon election bars Plaintiff's claims.  As per the “CARD AGREEMENT,” Defendant sent Notice of Arbitration Election in JAMS to Plaintiff via Certified Mail Return Receipt Requested on May 13, 2019.  After receiving no response from Plaintiff, Defendant filed and served a Motion to compel arbitration and stay the case on May XX, 2019. The Motion will be heard in this Court on June 11, 2019. 

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@BitsyM Quick stab at this for you to consider:

2.    ISSUES: LAW/FACT

The Card Agreement's arbitration provision is governed by the Federal Arbitration Act (the"FAA"). The arbitration agreement is enforceable under the FAA if the agreement is in writing, relates to a commercial transaction or maritime matter, and states the parties’ agreement to arbitrate a dispute. 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. State courts are bound under the Supremacy Clause, US Const, Art VI, § 2, to enforce the substantive provisions of the federal act. To ascertain the arbitrability of an issue, this Court must consider whether there is a valid, binding 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.

3.     RELIEF SOUGHT: 

Defendant requests that this Honorable Court grant her Motion to compel Plaintiff to arbitrate all of its claims per the terms of the Arbitration section of the Card Agreement and dismiss this action. In the alternative, the Court should order that this action be stayed pending completion of private contractual arbitration in JAMS.

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@BitsyM 

WITNESSES AND EXHIBITS TO BE CALLED/USED AT TRIAL: 

Defendant has no plans to call witnesses or introduce exhibits at this time. 

Further discovery is not needed at this time, pending the outcome of Defendant's Motion to compel arbitration and stay the case.

Has settlement been discussed? If yes, state that the parties were unable to reach agreement. If not, state that settlement has not been discussed.  

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