RelayerPA

To be served, or not to be served...

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5 minutes ago, BV80 said:


You also have to realize that if the plaintiff presents credit card statements with your correct name and address, most judges are going to be pretty sure that, absent ID theft, you opened the account.  You’d have to come up with a good explanation as to how those statements show your name and address but were never delivered to your mailbox and you never realized there was a credit card account opened in your name. 

Then it comes down to challenging the plaintiff's right to sue me, along with challenging the accuracy of their claims. This goes for either an arbitration setting or even if the magistrate ignores the MTC and continues the case. One of the more common assertions in forums such as this is that JDB records can be sloppy due to how they are handled, forward-flow agreements, and all that, and may very well contain errors that bring their claims into question AND that it doesn't hurt to try and discredit such JDB claims. As I said at the beginning of this post, I don't mind spending time coming up with multiple strategies to fight this... even if I find I don't use many of those strategies in court. I become more informed when I research these kind of challenges. However, I'd rather be more, as opposed to be less, prepared for any turn of events in court.

I've learned so far in this thread that I can do my MTC Arbitration differently than I did before, and have more confidence that the MTC will be honored, or at least I have faith that I can successfully appeal a judgement that may be handed down if the magistrate chooses to set it aside.

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To the best of my knowledge, this is a TRUE AND CORRECT COPY.

Thank you for the wording. That leaves just one other caveat I feel I need to address. In a previous case, I printed out the most recent copy of the OC's agreement. The Magistrate also decided to rule that since the effective date on the agreement was newer than the earliest statement date the plaintiff had a copy of, that that agreement doesn't apply. I argued that even the agreement says something along the lines that newer agreements supersede older copies of the agreement, unless I (as the card holder) responded in writing within 30 days of the new cardholder agreement that I do not wish to be bound by it. In other words, since I did not do so, then I expected to be bound by each new update of such an agreement if I don't respond in writing. Shouldn't the same go for the JDB when they receive an account through assignment, too?

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I personally have no problem agreeing to because it has nothing to do with the JDB's assignment nor whether there was ever any debt owed or what that debt amount might be or if the JDB is the proper party to collect any alleged debt.

That takes moxy, but I understand your reasoning for doing so. After all, it's the Plaintiff's burden of proof, not the defendant's.

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  And aside from that, if you look at all of the case law, once there is a valid agreement to arbitrate, the ONLY thing the court may rule on is the issue of arbitration.  The MTC stops all issues of the debt in court and shifts the argument to arbitration only.  Case law makes it clear that the Court has no real choice but to grant the MTC.

And if the magistrate fails to honor my rights, especially in light of my notarized affidavit, I have a very good chance to successfully appeal any other form of judgement made by the magistrate.

Thank you for the extra insight. I feel a bit more confident to success that I can get this moved to arbitration.

 

 

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51 minutes ago, RelayerPA said:

And if the magistrate fails to honor my rights, especially in light of my notarized affidavit, I have a very good chance to successfully appeal any other form of judgement made by the magistrate.

The Magistrate Judge would be ruling against several Supreme Court rulings regrading arbitration.  As far as I know, your Magistrate Judge has not been appointed Super-Supreme Judge with the power to over-rule SCOTUS.  Therefore, his error should easily be overturned.  Although that isn't even what you would be doing.  The de novo appeal means nothing from Magistrate court is brought to the higher court and it all starts over new.  So you aren't even appealing the erroneous decision, you are just starting the case over because the rules allow for it and the reason is irrelevant.

54 minutes ago, RelayerPA said:

The Magistrate also decided to rule that since the effective date on the agreement was newer than the earliest statement date the plaintiff had a copy of, that that agreement doesn't apply

Find an agreement as close to your date of default as possible. That is the correct one. - Or ANY agreement that you swear to in an affidavit that the JDB can not counter-testify to is also the 'correct one', if you know what I'm saying.

 

55 minutes ago, RelayerPA said:

That takes moxy, but I understand your reasoning for doing so. After all, it's the Plaintiff's burden of proof, not the defendant's.

I don't even see it as moxy or a risk.  You submit an MTC and the entire case shifts to whether or not there is a valid agreement to arbitrate.  The debt and everything else becomes irrelevant in that moment.  So I don't see a problem admitting to the portion that I am a party to the valid arbitration agreement.

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4 hours ago, RelayerPA said:

Then it comes down to challenging the plaintiff's right to sue me, along with challenging the accuracy of their claims. This goes for either an arbitration setting or even if the magistrate ignores the MTC and continues the case. One of the more common assertions in forums such as this is that JDB records can be sloppy due to how they are handled, forward-flow agreements, and all that, and may very well contain errors that bring their claims into question AND that it doesn't hurt to try and discredit such JDB claims. As I said at the beginning of this post, I don't mind spending time coming up with multiple strategies to fight this... even if I find I don't use many of those strategies in court. I become more informed when I research these kind of challenges. However, I'd rather be more, as opposed to be less, prepared for any turn of events in court.

I've learned so far in this thread that I can do my MTC Arbitration differently than I did before, and have more confidence that the MTC will be honored, or at least I have faith that I can successfully appeal a judgement that may be handed down if the magistrate chooses to set it aside.

If the magistrate refuses to grant your MTC, I would not offer up any other defense at that point. I would simply wait for the magistrate to rule and then unless the magistrate rules in your favor (highly unlikely), after the case is done, I would immediately go to the clerk and file an appeal with the higher court (even before the ink on the order has dried). If you wish to partake in any other defense, that is your business but realize if you do partake and win, the plaintiff might appeal.

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1 hour ago, WhoCares1000 said:

I would not offer up any other defense at that point.

Why not?  When you get to the point of no return you might as well throw everything at the wall and just see if something happens to stick.  There is no downside to a scorched earth tactic at that point.

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42 minutes ago, fisthardcheese said:

Why not?  When you get to the point of no return you might as well throw everything at the wall and just see if something happens to stick.  There is no downside to a scorched earth tactic at that point.

Except that even if something does stick, the plaintiff might appeal too so you are back to square 1. Really depends on how much effort you want to put forth after the MTC is denied knowing that you are coming back to court.

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2 minutes ago, WhoCares1000 said:

Except that even if something does stick, the plaintiff might appeal too so you are back to square 1. Really depends on how much effort you want to put forth after the MTC is denied knowing that you are coming back to court.

I understand your point, but an appeal on either side is de novo. If I would be denied arbitration, yet win the case on other points, an appeal by the plaintiff would still let me bring up arbitration at the higher court as if I filed the appeal myself.

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10 hours ago, WhoCares1000 said:

Except that even if something does stick, the plaintiff might appeal too so you are back to square 1. Really depends on how much effort you want to put forth after the MTC is denied knowing that you are coming back to court.

Like OP said, it's a de novo appeal so it doesn't matter.  Also the trial takes place immediately, not at a later time.

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Got the confidential information for the case from the Magistrate office. All it is is a reference to a few account numbers (FAN). It does not list which account number goes to which account OC mentioned in the complaint. There are several accounts listed on the original summons.

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On 8/13/2019 at 6:42 PM, fisthardcheese said:

Why not?  When you get to the point of no return you might as well throw everything at the wall and just see if something happens to stick.  There is no downside to a scorched earth tactic at that point.

I plan on taking a route that may even prevent scorched earth tactics, even though I am preparing for the contingency.

I retrieved the Cardholder Agreement for one of the accounts in the lawsuit. It has an arbitration clause that states:

"Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or Lowe’s, on the other hand, if the dispute or claim arises from or relates to your Account. However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate."

That clause will not make them require me (or the JDB) to arbitrate, but it allows me to force them to arbitrate, even if there is pending litigation. I will send the JDB a copy of this agreement and my formal request (demand, as per the terms of the agreement) to move this case to arbitration.

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The second account referenced in the JDB's complaint is an account with Citibank. I have searched through old scanned and archived CC statements, looked at all three credit reports, and I cannot find any account with the account number they reference in the complaint. There's a chance it could be my ex's account when she lived here only a couple years back, but we never had joint CC accounts.

I do have a CITI account, which I suppose could be reported as Citibank. But I just happen to come across my original welcome letter for that account, which includes its account agreement, and the number on this account is nowhere near what's on the complaint.

It looks like I should still compel arbitration for the first account on the complaint, but then directly dispute their evidence for the second account because numbers do not match any accounts in the resources a "least sophisticated consumer" like me have at my disposal to verify the account.

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Do you have more than one thread about this case?  I recall another post where someone had 2 different accounts that the JDB tied into one lawsuit.  Is that you?

I told that person/you to check with an attorney to see if this is even legal.  Did you do that?

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1 hour ago, fisthardcheese said:

Do you have more than one thread about this case?  I recall another post where someone had 2 different accounts that the JDB tied into one lawsuit.  Is that you?

I told that person/you to check with an attorney to see if this is even legal.  Did you do that?

This is my only post on the lawsuit.

As for the legality of more than one account per lawsuit, one of the court's forms for the submission of confidential information, like account numbers, allows for multiple accounts listed per page. The form's existence as a court form leads anybody to believe that it's legal.

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In that case, since they want to tie both cases together, I would present the card agreement that does not case an issue with small claims.

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20 hours ago, fisthardcheese said:

In that case, since they want to tie both cases together, I would present the card agreement that does not case an issue with small claims.

It took me a while to figure out what you meant by that, but I understand that I should use whichever agreement does not have the "small claims exception", am I right?

Assuming yes to that, I found this text in the agreement for one of the accounts:

"Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim."

This appears to be a small claims exemption. However, I'm wondering what "advances only an individual claim" means. Does it mean that the claim in any form is against an individual defendant, or does it mean that the claim must be by itself, and not tied with other claims in a suit? If the latter, then it seems the small claims exception does not apply with this particular case. I'm guessing I'm screwed for arbitration on this one, but this particular account is one where I can find no record of having based on the account number they provided and that I cannot find any evidence on any of my three credit reports that even have a matching account number fragment. I may end up having to simply dispute this in its entirety in court.

Now, the agreement for the other account in the same lawsuit states this:

"However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate."

While it may look like a small claims exception, the phrase "we will not require you to arbitrate any individual case in small claims court", appears to give me an option to do so. They simply won't "require" it, but it doesn't seem to strip me of any rights to request arbitration. Again, the definition of "individual claim" remains in question. 

As I see it, I will probably put the JDB on notice by sending them a notarized copy of the agreement for the latter account "which I believe to be true and correct" and tell them I elect arbitration per the terms of the agreement. I did this before with the same JDB and they withdrew their case, having yet to bring it up again. In this case, they'll either be forced to:

  • prove arbitration does not apply to that account
  • amend the case to remove the arbitrable account
  • withdraw the case completely
  • or, ignore the arbitration request and continue to fight it in court, making the entire case ripe for appeal if the magistrate does not honor the arbitration terms of the agreement.

 

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You know, the "individual claim" is generally used to mean no class action claims where there are more than one Defendant, however, I don't see why the argument can not be made that it also applies to a Plaintiff bringing multiple claims arising out of multiple contracts in one suit.

Does that Citi agreement name AAA or JAMS in it?  I know Synchrony has JAMS, correct?

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1 minute ago, fisthardcheese said:

You know, the "individual claim" is generally used to mean no class action claims where there are more than one Defendant, however, I don't see why the argument can not be made that it also applies to a Plaintiff bringing multiple claims arising out of multiple contracts in one suit.

Does that Citi agreement name AAA or JAMS in it?  I know Synchrony has JAMS, correct?

Citi lists both JAMS and AAA. 

As for "individual claim" interpretation, I read somewhere that ambiguity in an arbitration clause would actually favor toward allowing for arbitration because the agreement contains an arbitration clause.

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4 hours ago, RelayerPA said:

“Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim."

This appears to be a small claims exemption. However, I'm wondering what "advances only an individual claim" means. Does it mean that the claim in any form is against an individual defendant, or does it mean that the claim must be by itself, and not tied with other claims in a suit

“Individual” is explained in parentheses.  “Non-class” means that it’s not a class action.   In a class action, the named plaintiff is the class representative.  Therefore, “non-representative” means the plaintiff is not the representative of a class action.

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I've been trying to find case law for collections. I realize that PA Municipal Court has the loosest requirements for evidence in cases, however, shouldn't they be bound by case law somehow if case law is presented. My question is, what case law is valid for a PA Municipal Court? If I remembered anything from civics class, I'll assume that any and all case law from other PA Municipal Courts (including the Philadelphia and Pittsburgh local courts), case law from any PA Common Pleas court, case law from PA Supreme Court, case law from any U.S. District Court 3, and finally, SCOTUS, are suitable sources for case law.

Also, as for Rules of Civil Procedure, my county lists their rules a by number of the same that are at the state level. I'm assuming the few that are addressed locally are those in which the county modified for themselves, and any state level rule which the county has not annexed for their own purpose still binds PA Municipal Courts in their entirety.

That being said... I have attached a copy of a court brief that cites case law from a Common Pleas court in PA for documents supporting a collector's claim, showing an unbroken chain of title, along with case law from another Common Pleas court that the plaintiff must provide notice of what they plan to use as proof for their claim so the Defendant can properly prepare a defense. In light of that, in my case, I was only provided with a page of account numbers and total dollar amount sought. There were no other details provided by the plaintiff.

The court brief attached is from a court case that was found in favor of the Plaintiff in Municipal Court, then filed by the Defendant with this court brief as a Preliminary Objection for the appeal. The original plaintiff, Midland Funding did not respond to the appeal, and thus after two years the case was dismissed with prejudice.

Collections Case Appeal.pdf

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5 hours ago, fisthardcheese said:

You know, the "individual claim" is generally used to mean no class action claims where there are more than one Defendant, however, I don't see why the argument can not be made that it also applies to a Plaintiff bringing multiple claims arising out of multiple contracts in one suit.

Does that Citi agreement name AAA or JAMS in it?  I know Synchrony has JAMS, correct?

OK. I have no problems revealing the accounts in the plaintiff's claim now. One is for Lowes, the other is for Home Depot.

I found both cardholder agreements. Even though there is a "small claims exemption" in the cardholder agreement, I believe that only pertains to the OC. I found this particular clause in the arbitration portion of the agreement for Home Depot which specifically addresses debt collections:

"What about debt collections? We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt."

That final phrase, "including in a proceeding to collect a debt", sounds like a ticket to compel arbitration against a JDB in this case.

The Lowes card agreement contains the phrase, "However, we will not require you to arbitrate... any individual case in small claims court.", which I believe still allows me to request arbitration.

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48 minutes ago, RelayerPA said:

I've been trying to find case law for collections. I realize that PA Municipal Court has the loosest requirements for evidence in cases, however, shouldn't they be bound by case law somehow if case law is presented. My question is, what case law is valid for a PA Municipal Court? If I remembered anything from civics class, I'll assume that any and all case law from other PA Municipal Courts (including the Philadelphia and Pittsburgh local courts), case law from any PA Common Pleas court, case law from PA Supreme Court, case law from any U.S. District Court 3, and finally, SCOTUS, are suitable sources for case law.

You would need to consult an attorney regarding municipal courts.  Usually, the rulings of minor courts are not precedent on other minor courts.

The U.S. district courts rule on federal issues, so those decisions sre not binding on state courts because those courts handle state issues.

Here is something from the PA Superior Court.

Federal district and appeals court decisions are not binding precedent on this Court. We may follow their reasoning where it is persuasive. Chester Carriers, Inc. v. National Union Fire Ins. Co., 767 A.2d 555, 560 (Pa.Super.2001).

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This case may need a unique MTC for it.  You have two different contracts.  You will need to state that Plaintiff has alleged two different accounts on two separate contracts, both which contain an arbitration clause, then make 2 different sections on the MTC. Once section for each account and list the info about those contracts.  In those sections, I would specifically ask for one to be compelled to AAA per the contract and in the other section I would ask for THAT one to be compelled to JAMS under ITS contract.  Then after the two sections regarding each account's card agreement, I would make a section titled "Brief in Support" and this is where I would list all of the case laws supporting arbitration (which would apply to both accounts above).

I would not mention the small claims exception.  That is their burden to bring up if they chose to use it as a defense.  However, they have put themselves into a tight corner IMO.  They can't separate out the contracts unless they drop a claim from the suit and re-file it separately, so I don't see how they can present an exception for half of their lawsuit that can clearly be demonstrated does not apply to the other half of the claim.

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6 hours ago, fisthardcheese said:

This case may need a unique MTC for it.  You have two different contracts.  You will need to state that Plaintiff has alleged two different accounts on two separate contracts, both which contain an arbitration clause, then make 2 different sections on the MTC. Once section for each account and list the info about those contracts.  In those sections, I would specifically ask for one to be compelled to AAA per the contract and in the other section I would ask for THAT one to be compelled to JAMS under ITS contract.  Then after the two sections regarding each account's card agreement, I would make a section titled "Brief in Support" and this is where I would list all of the case laws supporting arbitration (which would apply to both accounts above).

I would not mention the small claims exception.  That is their burden to bring up if they chose to use it as a defense.  However, they have put themselves into a tight corner IMO.  They can't separate out the contracts unless they drop a claim from the suit and re-file it separately, so I don't see how they can present an exception for half of their lawsuit that can clearly be demonstrated does not apply to the other half of the claim.

I have attached an abridged copy of the MTC I plan on filing. It does not contain the header and footer information. Only the meat of the MTC is included to verify I have worded it soundly as per your suggestion. I also attached the two cardholder agreements I am basing the MTC on in case they may be enlightening.

Thanks!

creditcardagreement_3696.pdfcreditcardagreement_3696.pdfcreditcardagreement_3696.pdf

Sample MTC for JDB.pdf creditcardagreement_5023.pdf

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On ‎8‎/‎12‎/‎2019 at 9:26 PM, Robby8900 said:

if it were me personally, i would file a MTC and include a notarized affidavit attesting to the true and correct copy of the agreement governing the account retrieved from the CFPB credit card database. The plaintiff, would have to rebut the affidavit.

This is the wording I'll probably use on my affidavit to be notarized. I don't know if it's worded a little too "legalese", or if it needs to be, but I'm under the impression that this is the same as a sworn testimony, and using legal vernacular won't hurt anything. I also don't know if I should reference both accounts in a single affidavit or create a single affidavit for each item. The latter will be easy to fix. I also reference only Exhibit A and C because those are the exhibit numbers I used for each cardholder agreement in the MTC.

The Affiant is the Defendant in case number XXXX-XX-XXXX-XXXX in Pennsylvania Municipal Court XXX-XX-XXX. The Plaintiff in the case states a claim for two separate credit card accounts, yet has not provided material proof needed to assert ownership and terms for either account. Therefore, the Defendant felt obligated to find the proof on his own in hopes to prepare a proper defense. The accounts are individually referenced as belonging to Synchrony Bank and Citibank, N.A. and are referenced in the complaint as "FAN 1" and "FAN 2" respectively.

The Defendant utilized the Consumer Financial Protection Bureau (https://www.consumerfinance.gov/credit-cards/agreements/), an official website of the United States Government, which archives cardholder agreements for credit card accounts provided by credit card companies. Attached to this Affidavit are the following:

Exhibit A: Cardholder Agreement for FAN 1

Exhibit C: Cardholder Agreement for FAN 2

The Defendant attests that the attached Cardholder Agreements are true and correct copies to the best of his knowledge.

 

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14 hours ago, RelayerPA said:

This is the wording I'll probably use on my affidavit to be notarized. I don't know if it's worded a little too "legalese", or if it needs to be, but I'm under the impression that this is the same as a sworn testimony, and using legal vernacular won't hurt anything. I also don't know if I should reference both accounts in a single affidavit or create a single affidavit for each item. The latter will be easy to fix. I also reference only Exhibit A and C because those are the exhibit numbers I used for each cardholder agreement in the MTC.

The Affiant is the Defendant in case number XXXX-XX-XXXX-XXXX in Pennsylvania Municipal Court XXX-XX-XXX. The Plaintiff in the case states a claim for two separate credit card accounts, yet has not provided material proof needed to assert ownership and terms for either account. Therefore, the Defendant felt obligated to find the proof on his own in hopes to prepare a proper defense. The accounts are individually referenced as belonging to Synchrony Bank and Citibank, N.A. and are referenced in the complaint as "FAN 1" and "FAN 2" respectively.

The Defendant utilized the Consumer Financial Protection Bureau (https://www.consumerfinance.gov/credit-cards/agreements/), an official website of the United States Government, which archives cardholder agreements for credit card accounts provided by credit card companies. Attached to this Affidavit are the following:

Exhibit A: Cardholder Agreement for FAN 1

Exhibit C: Cardholder Agreement for FAN 2

The Defendant attests that the attached Cardholder Agreements are true and correct copies to the best of his knowledge.

 

I would google other affidavits to see how they should look.  This is your personal testament, and should be written as your own words rather than a third party.  Don't say "the Defendant attests...", Say that "I affirm to the best of my knowledge that this is a true and correct copy...".

The MTC looks good to me.  If you have time, I would add at least one case law form your state regarding arbitration.  There are usually several state rulings saying essentially the same as the SCOTUS.  The state case law should come just before the SCOTUS case law in your Brief section.  Perhaps @Brotherskeeper knows of any case that you can use.  She is great with finding case laws.

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