Dtigers23

Motion for Summary Disposition

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Hello all,

I received a motion for Summary Disposition in a lawsuit with Portfolio Recovery Associates here in Michigan and need some help with how to respond. I’ll break this down the best I can, if any additional info needed, please let me know.

-Served summons in May 2019 for a Barclay card with an amount owed of roughly $2200. Credit limit was only $2000 but $2100 for the debt + interest and late charges accrued and another 100+ for cost (I assume fees to PRA). Summons came with complaint and an affidavit from PRA.

-Filed and served my Answer later in May. At the advice of a BK Attorney to buy time while we evaluated our overall situation, I answered and claimed “Lack of Standing”. Thanks to this forum I cited no original contract, no proof of amounts, and no bill of sale. Hearing was scheduled for last week of July.

I just received a Motion for Summary Disposition from them. In it, they include the following:

-A new affidavit which is signed by and has information from a Barclay representative stating as such along with  some details on my account, sale of it etc. (it basically says it was sold in a pool of accounts and that the amount due is correct to her knowledge etc)

-A screenshot of what looks like part of my original application. It’s just a one page computer screenshot with my Name, Address, Income, Phone, SSN etc.

-Monthly account statements including transactions, payments etc up until charge off date of Sept 2017. I believe last payment date was February 2017.

They were surprisingly thorough in this response. They cited the application, statements, case law, breach of contract, stated account etc. Wondering if anyone has any advice for picking holes in it to delay or respond again. I have read a little about arbitration, is this my next move? If so, can someone explain the pros and cons, what a possible outcome looks like etc. There isn’t even a deadline to respond to this either, it just says “Please take notice that plaintiff’s motion for Summary Disposition will be brought on to be heard at the ________ court located at ____________ on 7/26/19.

BK7 is likely where we’re going and will qualify due to income changes but need to buy some time and don’t want to be garnished. Can’t file until October.

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Under the adoptive business record rules, they have supplied enough evidence to win their case. Also, because you have already answered and have gotten deep into the case, you might have lost your chance for arbitration (you cannot use arbitration to get out of a failing case).

They cannot garnish right away as you usually have time to file an appeal after a judgement is rendered. That is 21 days which will get you into August. Then there is about 2 weeks to get the garnishment started which will be the beginning of September, assuming they know where you work. If they don't know and cannot find the information, they will have to do a financial disposition on you to find that out and that will take longer (possibly a month).

In the meantime, cancel direct deposit if you can and leave about $10 in your bank account. If the account is in your name only and not your spouses, your spouse can open a bank account in their name only and you can leave funds there as Michigan is not a community property state.

Beyond that, prepare for a temporary loss of up to 25% of your income until you can file for Chapter 7.

Sorry I do not have better news for you.

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56 minutes ago, Dtigers23 said:

I thought I always had the right to arbitrate per Barclay’s agreement?

Depends on local court rules. Most jurisdictions place some limits on how deep you can get into litigation before changing tack. Perhaps you could argue that you only only saw the original agreement as part of their MSJ evidence.

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3 hours ago, Dtigers23 said:

I thought I always had the right to arbitrate per Barclay’s agreement?

If the Barclay's agreement that applies to your account is similar to the Standard Credit Agreement, it may state;

Quote

If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial.

 

It may also contain a delegation provision, like the Standard Credit Agreement, which usually means that only an arbitrator can decide the “gateway” issue of whether claims are subject to arbitration;

Quote

Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration.

 

But if the court that currently has jurisdiction is anything like small claims, arbitration might not be possible.  But, because of the delegation provision, an arbitrator still might have to decide arbitrability.

Quote

Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court

 

The Standard Credit Agreement (external to the arbitration clause) also has language which allows recovery of arbitration costs, but this language is inconsistent with current AAA rules;

Quote

As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs

 

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MICHIGAN JUDICIAL INSTITUTE © 2019 Civil Proceedings Benchbook:

D. Waiver of Right to Arbitrate

“An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except on a ground that exists at law or in equity for the revocation of a contract.” MCL 691.1686(1) (emphasis added). Waiver of a contractual right to arbitration is not favored. Kauffman v The Chicago Corp, 187 Mich App 284, 291 (1991).

“A party arguing there has been a waiver of the right to arbitration bears a heavy burden of proof. The party must demonstrate knowledge of an existing right to compel arbitration, acts inconsistent with the arbitration right, and prejudice to the party opposing arbitration resulting from the inconsistent acts.” Id. at 292. A party “expressly waived its right to arbitration when it stipulated [in a case management order] that the arbitration provision [in the parties’ agreement] did not apply[]” to the dispute. Nexteer Auto Corp v Mando America Corp, 314 Mich App 391, 397-398 (2016). “The language of the stipulation showed knowledge of an arbitration provision and a clear expression of intent not to pursue arbitration[; accordingly,] . . . the trial court erred when it determined that [the] statement was not an express waiver[.]” Id. at 396.

Furthermore, “where there is an express [(rather than implied)] waiver, the party seeking to enforce the waiver need not show prejudice.” Id. at 397 (citation omitted; emphasis added).

 

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Thank you guys for all the help. Can someone walk me through how to respond from here. I can’t seem to find any motion to compel arbitratjon paperwork for Michigan. Also, do I need to answer their motion for Summary Disposition in any way separately? Or do I just show up to hearing (originally scheduled as pre-trial, and now they filed the Summary Disposition, both to be heard on same day) and ask for arbitration?

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1 hour ago, Dtigers23 said:

Also, do I need to answer their motion for Summary Disposition in any way separately?

Yes, you need to oppose this or it will be granted and the MTC rendered moot.

1 hour ago, Dtigers23 said:

Or do I just show up to hearing (originally scheduled as pre-trial, and now they filed the Summary Disposition, both to be heard on same day) and ask for arbitration?

File the opposition to the MSD and file your separate MTC at the same time.  DO NOT wait until the hearing to deal with the MSD.

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