MIOMH

Sued by Midland in Suffolk County, NY

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2 hours ago, Brotherskeeper said:

@fisthardcheese NY rules have a nifty burden-shifting provision that--if executed correctly--precludes plaintiff from objecting to arb if they receive a notice of intent to arb and don't apply to stay the arb within 20 days. This notice (per usctrojanalum) has to be sent to the plaintiff directly CMRRR, with a copy to the plaintiff's attorney. 

New York Consolidated Laws, Civil Practice Law and Rules - CVP § 7503. Application to compel or stay arbitration;  stay of action;  notice of intention to arbitrate

(c) Notice of intention to arbitrate. A party may serve upon another party a demand for arbitration or a notice of intention to arbitrate, specifying the agreement pursuant to which arbitration is sought and the name and address of the party serving the notice, or of an officer or agent thereof if such party is an association or corporation, and stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time. Such notice or demand shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. An application to stay arbitration must be made by the party served within twenty days after service upon him of the notice or demand, or he shall be so precluded. Notice of such application shall be served in the same manner as a summons or by registered or certified mail, return receipt requested. Service of the application may be made upon the adverse party, or upon his attorney if the attorney's name appears on the demand for arbitration or the notice of intention to arbitrate. Service of the application by mail shall be timely if such application is posted within the prescribed period. Any provision in an arbitration agreement or arbitration rules which waives the right to apply for a stay of arbitration is hereby declared null and void.

It doesn't make sense to me.  How can you stay an arbitration case that isn't open yet.  Also, this only serves to prevent them from objecting that a valid agreement "was not made", which is a backwards double negative and also doesn't make sense, but let's say it means they can't object to the validity of the card agreement, that is rarely, if ever, an issue on this board anyway.

I guess the letter can't hurt, but I still see no real advantage.

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1 minute ago, fisthardcheese said:
 

It doesn't make sense to me.  How can you stay an arbitration case that isn't open yet.  Also, this only serves to prevent them from objecting that a valid agreement "was not made", which is a backwards double negative and also doesn't make sense, but let's say it means they can't object to the validity of the card agreement, that is rarely, if ever, an issue on this board anyway.

I guess the letter can't hurt, but I still see no real advantage.

In Shelly7's similar Suffolk case, the attorney claimed Shelly7 did not comply with the CC agreement's requirements to properly assert her arb rights under the agreement. He also claimed he never got the notice of intent to arbitrate, even though it was sent CMRRR and was signed for at the lawfirm. 

2 minutes ago, fisthardcheese said:

stating that unless the party served applies to stay the arbitration within twenty days after such service he shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

Plaintiff can't object that the agreement Defendant attaches is the incorrect agreement or that defendant didn't comply with the agreement's requirements on how to assert arb rights. As I understand this, the JDB plaintiff has to apply to stay (the court's ruling on the defendant's motion to compel) arbitration. (IANAL)

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I know Shelly7 had a weird case, but is that indicative of all NY cases?

5 minutes ago, Brotherskeeper said:

As I understand this, the JDB plaintiff has to apply to stay (the court's ruling on the defendant's motion to compel) arbitration.

This part is so confusing. I might as well put the sentence in a blender and it would be more clear to me.

You can ask for a stay of a motion (essentially)?  So, the judge can grant an MTC and then also grant Plaintiff's stay on his own order?  It sounds to convoluted.  And even if that is the case, doesn't that usurp the SCOTUS?

I guess for OP's sake, send the letter.  But I just can't wrap my head around this one.

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12 minutes ago, fisthardcheese said:

So, the judge can grant an MTC and then also grant Plaintiff's stay on his own order?  It sounds to convoluted.

I think it's a stay on the proceeding to compel arb. The other weird NY issue is that I don't believe there is a judge assigned to the case until a Request for Judicial Intervention (RJI) is filed and a fee is paid. IANAL. NY courts have a lot of hoops other courts don't. Also, the time frame is insanely long. 

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8 hours ago, fisthardcheese said:

Most importantly -- is this in a small claims court?

No, Supreme Court.

I'll send the letter of selecting arbitration w/AAA and requesting dismissal to the attorney and Midland as per what @Brotherskeeper found. I was under the impression that I can't mail Midland directly. 

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1 hour ago, Brotherskeeper said:

The other weird NY issue is that I don't believe there is a judge assigned to the case until a Request for Judicial Intervention (RJI) is filed and a fee is paid.

That is correct my case is still Pre-RJI.  Should I hold off on filing my MTC?

@usctrojanalum wrote this in Shelly7's Post "Yes, the $95 RJI fee is the request for a judge. NY practice is very different from Federal practice. In NY, a judge is not assigned until a plaintiff or a defendant requests one. That's why it is sometimes wise to wait for the plaintiff to move the case along because you can get out of paying the $95 if you don't make the first move. I would say it is pretty rare that a defendant would file an RJI and pay the $95 first, it would be under some pretty unusual circumstances. "


"Supreme Court cases are not assigned to a Judge until one of the parties files a Request for Judicial Intervention (RJI) form and pays the filing fee. (There is no RJI fee for a name change). An RJI needs to be filed the first time one side needs a judge to do something in the case, like decide a motion or order to show cause, or hold a conference, or trial."  Correct me if I'm wrong but my interpretation of this is that if I file MTC I would also need to request RJI.

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I believe below reiterates about waiting for Midland to proceed with RJI before I file MTC but you guys know better and are way more experienced than me.

PART 202. Uniform Civil Rules For The Supreme Court And The County Court (Section 202.8 Motion procedure)

"

(a) All motions shall be returnable before the assigned judge, and all papers shall be filed with the court on or before the return date.

(b) Special Procedure for Unassigned Cases. If a case has not been assigned to a judge, the motion shall be made returnable before the court, and a copy of the moving papers, together with a request for judicial intervention, shall be filed with the court, with proof of service upon all other parties, where required by section 202.6 of this Part, within five days of service upon the other parties. The moving party shall give written notice of the index number to all other parties immediately after filing of the papers. Copies of all responding papers shall be submitted to the court, with proof of service and with the index number set forth in the papers, on or before the return date. The case shall be assigned to a judge as soon as practicable after the filing of the request for judicial intervention pursuant to section 202.6 of this Part, but in no event later than the return date. After assignment to the judge, the court shall provide for appropriate notice to the parties of the name of the assigned judge. Motion papers noticed to be heard in a county other than the county where the venue of the action has been placed by the plaintiff shall be assigned to a judge in accordance with procedures established by the Chief Administrator."

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24 minutes ago, MIOMH said:

No, Supreme Court.

I'll send the letter of selecting arbitration w/AAA and requesting dismissal to the attorney and Midland as per what @Brotherskeeper found. I was under the impression that I can't mail Midland directly. 

It's all spelled out very clearly in Shelly7's thread (with corrections) that the notice of intention to arbitrate has to be sent to Midland directly. A copy (cc) of that notice letter may be sent to the attorney c/o attorney's address on the complaint. Also:  The notice must contain all of the elements outlined in the CPLR 7503(c) rule and be sent CMRRR to Midland. 

For all other communications in the lawsuit, because Midland is represented by an attorney, everything filed in the case should be sent to the attorney, not Midland. This 7503(c) notice appears to be an exception--according to usctrojanalum's research. 

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17 hours ago, fisthardcheese said:

 

Most importantly -- is this in a small claims court?

@fisthardcheese Did you ask that question because of Arbitration limits?

Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

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At the infancy stage of the post everyone was informing me that I should file a motion with the court for permission to file an amended answer or MTC Arb Now knowing that my case status is Pre-RJI and that the person that files for a motion requires to pay the $95 RJI fee.

Do I just send my Intention to Arbitrate and wait for Midland to file a motion before I file MTC Arbitration? 

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9 hours ago, Brotherskeeper said:

It's all spelled out very clearly in Shelly7's thread (with corrections) that the notice of intention to arbitrate

Thank you for informing me about the correction.  Even though, Shelly7 and my case are very similar (JDB, State and County) the OC is different and as everyone has mention you shouldn't cookie cut letters, forms, etc.

I'm going to post my Intention to Arbitrate hoping someone can review and I have a question or 2.

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 Name, Defendant
Address

Date

 

Midland Funding LLC
350 Camino De La Reina, Suite 100

San Diego, CA 92108

Cc.Attorney, Esq. Attorney for Plaintiff, Midland Funding LLC

Attorney's address

 

Index No.

 

Consumer Credit Transaction

 

Supreme Court of the State of New York County of Suffolk

NOTICE OF INTENTION TO ARBITRATE CLAIMS

Dear Midland Funding LLC

This is to notify you of my intention to arbitrate the claims and disputes of the subject account pursuant to the applicable Original Creditor branded account agreement.  As per this agreement’s arbitration section, I select American Arbitration Association (“AAA”) as the arbitration administrator.


 

Unless Midland Funding LLC applies to stay the arbitration within twenty days after service of this notice of my intention to arbitrate these disputes, shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.


Sincerely,

 

Defendant, Pro Se

 

Sent USPS Certified Mail, Return Receipt Requested #

=============================================================================

I guess I only have one question - For the Original Creditor should I CITIBANK, N.A. (COSTCO ANYWHERE VISA CARD) as per the summons or Citibank Costco Anywhere Visa Card by Citi Card which @Brotherskeeper assisted providing a link to download and I searches online for the agreement appears as that?

Let me know what you guys think.

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2 hours ago, MIOMH said:

@fisthardcheese Did you ask that question because of Arbitration limits?

Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

Yes.

1 hour ago, MIOMH said:

Let me know what you guys think.

I don't like the second paragraph.  My own opinion is that I never tell the other side what they are supposed to do. That's for them to know and figure out.  Why help them?

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I understand what you're saying but I think it is required.  @Brotherskeeper said to include it in Shelly7's thread.

It is backed up by 7503

 (c) Notice of intention to arbitrate. A party may serve  upon  another
  party  a  demand  for arbitration or a notice of intention to arbitrate,
  specifying the agreement pursuant to which arbitration is sought and the
  name and address of the party serving the notice, or of  an  officer  or
  agent  thereof  if  such  party  is  an  association or corporation, and
  stating that unless the party served applies  to  stay  the  arbitration
  within  twenty  days after such service he shall thereafter be precluded
  from objecting that a valid agreement was  not  made  or  has  not  been
  complied  with  and  from  asserting in court the bar of a limitation of
  time.

What do you think about the account pursuant to the applicable Original Creditor branded account agreement?

Should I enter CITIBANK, N.A. (COSTCO ANYWHERE VISA CARD) as per the summons

or

Citibank Costco Anywhere Visa Card by Citi Card

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9 hours ago, MIOMH said:

At the infancy stage of the post everyone was informing me that I should file a motion with the court for permission to file an amended answer or MTC Arb Now knowing that my case status is Pre-RJI and that the person that files for a motion requires to pay the $95 RJI fee.

I don't know enough about NY to know if or how much it may hurt you not to have asserted arbitration as an Affirmative Defense in your Answer. The remedy for this is to file an amended Answer. In my state, you have so many days after filing the first Answer to file an amended Answer (titled FIRST AMENDED ANSWER) without permission (via a motion to amend) from the court or a signed stipulation from the Plaintiff. An amended Answer takes the place of the original Answer, so you have to make certain it's correct. Under your rules, can you file a supplemental pleading to add Affirmative Defenses, since you discovered the right to arb after filing your Answer? If yes, does that require a motion? 

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9 hours ago, MIOMH said:

I guess I only have one question - For the Original Creditor should I CITIBANK, N.A. (COSTCO ANYWHERE VISA CARD) as per the summons or Citibank Costco Anywhere Visa Card by Citi Card which @Brotherskeeper assisted providing a link to download and I searches online for the agreement appears as that?

Are you saying the name of the credit card is incorrect on the Summons? If plaintiff did not attach a copy of the Agreement or a monthly statement showing Citibank, N.A. (Costco Anywhere Visa Card), and you can't find an agreement listed in this way in the CFPB archive or anywhere else, then it may be an error. If you believe the correct agreement is "Citibank Costco Anywhere Visa Card by Citi Card," then that is the agreement to use. If plaintiff fails to respond back to the court to apply to stay the arbitration proceeding, then they will be precluded from objecting it's the applicable agreement. If they do respond back to the court, they likely will have to submit the agreement they claim is the right one.  Any Citibank agreement is probably going to have the same or nearly the same arb clause. 

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Hello All,

I private message @usctrojanalum just a few minutes ago, since everyone hails him as the expert in NY Laws but I am hoping someone can find a loop hole on my dilemma.

As I waited for more input and a stamp of approval for my Notice of Intention to Arbitrate, I started looking more into Arbitration.  I believe I'm screwed and waived my right to arbitrate.

1) I did not use it as an affirmative defense?
2) I had 21 days to amend it after filing, if more than 21 days past after filing I would need to get a stipulation from the Plaintiff to allow it.  I'm past the 21 days, I filed with the court but not with the plaintiff.  They should've received it yesterday but it had to be handed in by the 15th.  If I try to amend it can the plaintiff argue that I was late and a request a default judgement?

I found many CPLR and case law supporting that I waived it.  I tried contacting the Chief Clerk's Office and multiple Court Help Centers.  The only person that picked up was the secretary to the Chief Clerk and she transferred me to a line that just kept on ringing.

I was wondering if anyone knew of any loop hole or better my assumption is incorrect. 

I may be signed off but I will be monitoring the thread.

Thank you

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@MIOMH

Here's an example of a NY attorney-prepared "Defendant's Motion to Amend Answer to add affirmative defense of lack of permissive use." 

https://www.jdsupra.com/legalnews/motion-to-amend-answer-61600/

Here's a snippet from a NY case; http://www.courts.state.ny.us/REPORTER/3dseries/2008/2008_50769.htm

"It is well settled that arbitration has emerged as a preferred method for settlement of many controversies. New York codified its strong public policy favoring arbitration with the enactment of CPLR 7501[FN1] (CPLR 7501, 13-75 New York Civil Practice: CPLR P 7501.00). Arbitration clauses are valid and enforceable on such grounds that exist at law or in equity for any contract. To this end, arbitration agreements, like contract rights, [*3]can be modified, waived or abandoned. (See Sherril v Grayco Builders, Inc., 64 NY2d 261, 272 [1985].) It is generally assumed that the party who commences the action has waived its right to arbitrate. The same assumption does not apply to the defendant (De Sapio v Kohlmeyer, 35 NY2d 402,405 [1974]). However, the right of the defendant to compel arbitration is not absolute and can be forfeited prior to trial (Matter of Zimmerman, 236 NY 15 [1923]). "[W]here the defendant's participation in the lawsuit manifests an affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory" (De Sapio at 405). . . . Defendants' neglect to serve a proper demand until approximately twenty-two months after plaintiffs commenced this action constitutes an "unreasonable delay" (Gabor at 1001, noting that defendants' service of a demand for arbitration eight months after the action commenced was an "unreasonable delay" and constituted a waiver of defendant's right to arbitrate). Plaintiffs have spent time and resources actively pursuing this claim in the judicial forum and should not be prejudiced by defendants' failure to compel arbitration in a timely manner. Defendants have actively participated in this litigation by submitting an answer containing five affirmative defenses, procuring an order for discovery, and participating in two pretrial conferences (see De Sapio v Kohlmeyer , 35 NY2d 402 [1974], noting that procuring an order for the taking of a deposition is a factor in a defendant's waiver of arbitration; St. Paul Travelers Companies, Inc. v Shore Drugs, Inc., 36 AD3d 891, 892 [2d Dept 2007]"

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On 7/28/2019 at 7:21 PM, Brotherskeeper said:

"Defendant's Motion to Amend Answer to add affirmative defense of lack of permissive use." 

Thank you for providing the examples.

I'm not going to file for a Motion to Amend Answer as @BV80 pointed out in another thread
New York has a "long and strong public policy favoring arbitration." Stark v. Molod Sptiz DeSantis & Stark, P.C., 9 N.Y.3d 59, 66 (2007).
Under both federal and New York law, however, "[t]here is no per se rule that arbitration must be pleaded in the answer in order to avoid waiver.”  Thyssen, Inc. v Calypso Shipping Corp., S.A., A.M., 310 F3d 102, 105-106 [2d Cir. 2002][stating the Second Circuit rule]; MCC Dev. Corp. v Perla, 81 AD3d 474, 475 [1st Dept 2011], lv denied 17 NY3d 715[holding under New York law that the acts of interposing answers with affirmative defenses or counterclaims may be "fairly characterized as necessary protective measures, not acts that are clearly inconsistent with defendants' contractual rights to arbitration"].

Also, my case status is still Pre-RJI.  You have to pay to get a judged attached to the case then pay for a motion.

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I received Exhibit A with Interrogations referencing CPLR 3133 a and b.  Exhibit A are 6 months of statements.

Am I obligated to answer these questions?  They haven't filed it with the court, yet.


CPLR 3133
Service of answers or objections to interrogatories.

(a) Service of an answer or objection.
Within twenty days after service of interrogatories, the party upon whom they are served shall serve upon each of the parties a copy of the answer to each interrogatory, except one to which the party objects, in which event the reasons for the objection shall be stated with reasonable particularity.

(b) Form of answers and objections to interrogatories.
Interrogatories shall be answered in writing under oath by the party served, if an individual, or, if the party served is a corporation, a partnership or a sole proprietorship, by an officer, director, member, agent or employee having the information. Each question shall be answered separately and fully, and each answer shall be preceded by the question to which it responds.

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Here is my time table with the Summons and Complaint.
June 10th: They filed Summons & Complaint, and Statement of Authorization for Electronic Filing with the court
June 11th: I was served with the Summons and Complaint.
June 19th: They filed Affirmation/Affidavit of Service with the court.
June 26th: COURT NOTICE Filing on Behalf of - 202.27-B PROOF OF MAILING".
July 1st: I provide my answer to the court.
July 23rd: I mailed my answer to the Midland's attorney.
July 25th: They received my answer.
                Mailed my notice of intention to arbitrate claims to Midland and Attorney.
July 30th: Received Exhibit A and Interrogations.  It was post stamped July 26th so I assume it was a reply for my answer.


I'm not sure why they haven't received my Intention to arbitrate and I received their Interrogation letter, since I mailed it Thursday the same day they received my answer and they mailed the interrogation on Friday.  I can't imagine a CMRRR taking longer than regular mail.
I'll ask again in case it gets lost in my previous thread.

Am I obligated to answer these questions?  They haven't filed it with the court, yet.
 

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I subscribe to a credit monitoring service.  I was notified today/yesterday Wednesday that Midland Funding LLC appeared on my credit report.

Question 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  Should I dispute?

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10 hours ago, MIOMH said:
 

I subscribe to a credit monitoring service.  I was notified today/yesterday Wednesday that Midland Funding LLC appeared on my credit report.

Question 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  Should I dispute?

Yes, if you have a basis for a dispute. Is something inaccurate in the reporting? 

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10 hours ago, MIOMH said:

Am I obligated to answer these questions?  They haven't filed it with the court, yet.

You need to check your rules of civil procedure. In my state, discovery requests are not filed with the court. If the discovery request contains requests for admissions, failure to answer those within the time limit deems them admitted. If you are going to motion to compel arbitration, you need to check NY rulings to see if answering interrogatories would be considered participation in the judicial process.

In some states, posters here answer interrogatories with an objection, and that private contractual arbitration has been elected pursuant to the subject account agreement's arbitration clause. As such, Defendant's participation in Plaintiff's litigation discovery may demonstrate conduct inconsistent with his assertion of a right to arbitrate. Any discovery requests are to be decided by the arbitration administrator according to the rules of the arbitration forum--or something like that. 

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On 8/1/2019 at 11:43 AM, Brotherskeeper said:

Yes, if you have a basis for a dispute. Is something inaccurate in the reporting? 

@Brotherskeeper Thank you for following me.  My dispute would be that I have not applied or made any contract with Midland to appear on my credit report.

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