crabbypatty

Help with arbitration

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I am being sued by Portfolio Recovery Associates for 1,893.00 for a Dell Account.  This account was created according their complaint.  I do not have a copy of the credit card agreement and they do not have a copy of the credit card agreement which they admitted in Discovery.  I do not have a lawyer and feel like I am getting in over my head.  They filed a complaint, I responded.  I filed for discovery and they responded.  They sent me discovery and I responded.  I filed with the court that I am requesting arbitration but have not filed with JAMS yet which is making me panic because I filed my request about a week and  a half ago.   I need help filling out the dispute part on the JAMS arbitration form.  Does it have to be a detailed report or just a few reasons why I dispute the debt?    PRA admitted that they do not have a contract but they do have statements of the account starting with a zero balance, assignments from Dell to PRA and 3 affidavits.  It looks as though from the statements that there was only one payment on the account.  This account would have been created by phone if I rememeber correctly.  I cannot find any emails pertaining to this debt or statements or final demand letter.  I even went through my phone records and couldnt even find where they had tried to contact me.  On top of this they filed for MTS and I have to respond by Monday.  In my dispute to JAMS can I even put that no one has a contract?  Can I contest their affadavits?  

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13 hours ago, crabbypatty said:

I filed with the court that I am requesting arbitration but have not filed with JAMS yet which is making me panic because I filed my request about a week and  a half ago.

Did you file an actual motion to compel arbitration with the court? Filing a demand claim in JAMS while still in court is not advised.

 

13 hours ago, crabbypatty said:

In my dispute to JAMS can I even put that no one has a contract?

No. You have to have a valid contract with an arbitration clause binding the parties. The Dell agreement has one. Please read this thread. @MikeB35 and @nobk4me are from Ohio. 

 

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Do you have another thread? Im just trying to see where you got your advice for furthering your case. From the above paragraph it looks like you did a lot of unnecessary work, the only thing all of that did was buy you a little time. Strategically you want to buy time while in arbitration, not in the courts.

Who is the law firm?

When was your account opened?

 

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I have a copy of the terms and agreements that PRA attached with their discovery requests and it does have an arbitration clause in it.  Since we have already made it through the discovery phase I did file a motion to compel arbitration with the court and they scheduled a hearing for June 13, 2019.  Of course I will be on a family vacation that has been scheduled since January of 2019 so I just requested a continuance due to a family obligation that has been scheduled since January.  I called the the court to make sure they received and she said they wont reschedule it yet because they are waiting on my response to the Plaintiff's request for motion summary judgement.  I will be working on my response this weekend because I am almost out of time to respond and I need to turn it in Monday.  Also, do I not file a case with Jams until after they grant my request for arbitration?  Do you have any suggestions on how to oppose a motion summary judgement?  I am worried that if I put in my response to motion summary judgement that I do not have a copy of the contract and the Plaintiff does not have a copy of the contract then when Jams looks at that they will deny my request to arbitrate with them because no one has a copy of the contract.  As for my information, I have just been googling and studying Ohio laws, local rules of the court, Supreme court rules, following threads and just fumbling my way through this.  I do not want to hire an attorney because it would cost more to do that than to pay the debt.  I have only found one attorney that would be willing to represent me and she charges a flat fee of 2000.  I did find an attorney who would let me consult with him over the phone for 75.00 for 30 minutes.  Any help with this would be so appreciated.  Thanks.

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I would not bother filing a case with JAMS unless and until the MTC Arb is granted.  If the arb motion is denied, you are just wasting your effort.

Did you file the MTC Arb before the plaintiff filed for summary judgment?

Could you move the hearing up, before June 13, on the arb motion?  It would make sense to hear the arb issue first, before anything else, since it is challenging the court's jurisdiction.

To successfully fight a SJ motion, you need to demonstrate a genuine issue of material fact that is in dispute.    That you have their SJ motion and your arb motion both before the court at about the same time greatly complicates things.  

The only thing I can suggest is to object to their SJ motion as there is a jurisdictional issue before the court.  This will be easier to do if you filed your arb motion first.  

@fisthardcheese, do you have any suggestions?

 

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50 minutes ago, crabbypatty said:

I have a copy of the terms and agreements that PRA attached with their discovery requests and it does have an arbitration clause in it.  Since we have already made it through the discovery phase I did file a motion to compel arbitration with the court and they scheduled a hearing for June 13, 2019.

This is the agreement ("contract") that governs the account. The arbitration clause in it is what the judge will consider with your motion to compel arbitration. The fact that you were only able to learn of the contract's arb clause after it was provided to you during discovery, and acted quickly to evoke your right by your motion to compel, is a good argument against too much participation in litigation. Did PRA file a written opposition response to your motion?

1 hour ago, crabbypatty said:

Also, do I not file a case with Jams until after they grant my request for arbitration?  Do you have any suggestions on how to oppose a motion summary judgement?

You need to have your motion to compel ruled on first.

Can you post their motion for summary judgement? 

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18 hours ago, Brotherskeeper said:

Did PRA file a written opposition response to your motion?

This is an important question we need the answer to. 

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On 5/31/2019 at 7:47 PM, crabbypatty said:

They filed a complaint, I responded.  I filed for discovery and they responded.  They sent me discovery and I responded. 

Did you list arbitration as an affirmative defense in your answer to the complaint?

How extensive were your discovery requests?

How did you respond to their discovery requests? Did you mention arbitration in any response? 

 

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I have a copy of the terms and agreements that PRA attached with their discovery requests and it does have an arbitration clause in it.  Since we have already made it through the discovery phase I did file a motion to compel arbitration with the court and they scheduled a hearing for June 13, 2019.  Of course I will be on a family vacation that has been scheduled since January of 2019 so I just requested a continuance due to a family obligation that has been scheduled since January.  I called the the court to make sure they received and she said they wont reschedule it yet because they are waiting on my response to the Plaintiff's request for motion summary judgement.  I will be working on my response this weekend because I am almost out of time to respond and I need to turn it in Monday.  Also, do I not file a case with Jams until after they grant my request for arbitration?  Do you have any suggestions on how to oppose a motion summary judgement?  I am worried that if I put in my response to motion summary judgement that I do not have a copy of the contract and the Plaintiff does not have a copy of the contract then when Jams looks at that they will deny my request to arbitrate with them because no one has a copy of the contract.  As for my information, I have just been googling and studying Ohio laws, local rules of the court, Supreme court rules, following threads and just fumbling my way through this.  I do not want to hire an attorney because it would cost more to do that than to pay the debt.  I have only found one attorney that would be willing to represent me and she charges a flat fee of 2000.  I did find an attorney who would let me consult with him over the phone for 75.00 for 30 minutes.  Any help with this would be so appreciated.  Thanks.

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So far PRA has not filed written opposition to my motion.  I am thinking that they are banking on winning a motion summary judgement.  I did not raise arbitration as a defense in my affirmative defenses but I did put as my eleventh defense that "Defendant does reserve the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

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@crabbypatty  If your motion to compel arbitration and stay the case was (1.) properly done according to Ohio and your specific court rules, (2.) properly filed and served and (3.) scheduled for a hearing, when was the deadline for PRA to respond in opposition to your motion? If that deadline has passed, your motion remains unopposed. 

Arbitration is an affirmative defense to a lawsuit. In some states, a failure to assert this in an answer to a complaint waives the right to assert it. A motion for leave to file an amended answer to include this affirmative defense may be possible, since you only discovered the arbitration clause after engaging in discovery. If plaintiff had filed a copy of the agreement with the complaint, your answer could have included this affirmative defense. 

 

If your motion to compel arbitration is unopposed, there is no dispute that a valid agreement (provided by the plaintiff in response to a discovery request) with a written, binding arbitration clause exists between the parties, and is enforceable.  If this material fact is not in dispute, then their motion for summary judgment must be denied and the proper forum for the dispute is arbitration not court. 

If plaintiff  does dispute whether the parties agreed to arbitrate or that the clause is unenforceable, then this raises a threshold question whether this case belongs in arbitration or litigation. Material disputes of fact do exist on the question whether the parties agreed to arbitrate, and the motion for summary judgment must be denied.

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I was also going to use the fact that the affidavits would be admissible under ohio rules which state that business recprds are admissible given a statement from a custodian of business records whch are created in the normal course of business     but it doesn't look like it in Ohio Civil Rules.  Is that how you take this:

 RULE 406. Habit; Routine Practice 
 
 Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 
 
[Effective:  July 1, 1980.] 

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@crabbypatty You have a motion to compel arbitration before the court. This means that the arbitrator and not the court is to decide rules of evidence. (I am not an attorney.) You've already engaged in the litigation process a lot with the discovery requests and failure to assert arbitration as an affirmative defense in your answer or submit a motion for leave to file an amended answer. You did file a motion to compel and stay the case that at the moment is unopposed. Since they've filed a MSJ, your first order of business needs to be defeating the MSJ under Ohio rules. What forum is the proper one to hear the disputes is a material fact. 

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What do you think about the Ohio Civil Rule that I posted above?  Is that saying that an avvidavit is admissible WITHOUT a statement from the custodian of business records?

 RULE 406. Habit; Routine Practice 
 
 Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. 
 
[Effective:  July 1, 1980.] 

 

Im panicking because that is what all of the information in my MSJ was targeting.  I found a great response to MSJ on that tough nickel website but it is based on Idaho rules.

 

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@crabbypatty I'm sorry but I don't have the time to go through all of the docs you've posted. Look carefully to see if your name and specific account number is stated in the affidavit of the purported original creditor. If it just states a pool of accounts was sold, where is the sworn statement by a custodian or authorized representative of the original creditor that your specific account was included in the original sale? 

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Here is a copy of the affidavit that I attached to the MTC.

 

 

 

Edited by Brotherskeeper
Personal information deleted.

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