Beachykeen

Being Sued by Midland Credit in Florida ~ Please help

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5 minutes ago, Beachykeen said:

@fisthardcheese

May I ask what you thought of my MTC? x

If you haven't sent them a letter, just eliminate number 2 and renumber.  It looks fine otherwise.  If time permits I would try to look up some FL case law regarding arbitration to add in there in addition to the Supreme Court case.  @Brotherskeeper might know of some FL case you can add.

No need to bother mailing a copy since you aren't filing this until the day of the hearing and you will be handing it to the attorney instead.  That will be your service to them. 

I would look for the attorney to ask for a continuance to have time to respond to your motion since you are filing it the day of the hearing.  When they ask, I would tell them that you have no objection to a continuance and accept a new court date.  This time will help you out too.

If the judge denies your MTC you have the right to an appeal and SHOULD win on appeal, but I don't know what that would completely entail in FL off hand.  You probably have somewhere between 10-20 days to appeal, so should that be needed you can come back here afterwards and figure it out.  If the judge denies your MTC and wants to immediately move to rule on the alleged debt, ask for a continuance for 30 days (it's a hail mary to stop things and come back to re-group).  If the continuance is denied, then do your best to refute their claims and make them prove that they 1) Have the proper chain of custody showing they in fact own this account and 2) can show how they calculated the alleged amount owed.  Just deny knowledge of the amount or owing anything and force them to prove it. (also a hail mary).

 

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13 minutes ago, Beachykeen said:

But I don't know if it is a true and correct copy ~ it's literally just what I downloaded from the internet from the Comenity/HSN website. 😕

Okay, let me put it this way.

If I knew that I once had a HSN account backed by Comenity Bank, and that account contained a card agreement, and I have an agreement that is from HSN/Comenity Bank which has the same or similar wording and is from around or near the time my account was open, then I, personally, myself, would be comfortable stating in an affidavit that "TO THE BEST OF MY KNOWLEDGE AND BELIEF this is a true and correct copy" of my card agreement.  Of course I can't say "without a shadow of a doubt" because the human brain is not flawless to that degree.  That is why the legal term "to the best of my knowledge and belief" is used daily.

You know enough to know. Do you see what I'm getting at?  Because if you don't know at all, then you might as well not bother at all.

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16 minutes ago, fisthardcheese said:

If you haven't sent them a letter, just eliminate number 2 and renumber.  It looks fine otherwise.  If time permits I would try to look up some FL case law regarding arbitration to add in there in addition to the Supreme Court case.  @Brotherskeeper might know of some FL case you can add.

No need to bother mailing a copy since you aren't filing this until the day of the hearing and you will be handing it to the attorney instead.  That will be your service to them. 

I would look for the attorney to ask for a continuance to have time to respond to your motion since you are filing it the day of the hearing.  When they ask, I would tell them that you have no objection to a continuance and accept a new court date.  This time will help you out too.

If the judge denies your MTC you have the right to an appeal and SHOULD win on appeal, but I don't know what that would completely entail in FL off hand.  You probably have somewhere between 10-20 days to appeal, so should that be needed you can come back here afterwards and figure it out.  If the judge denies your MTC and wants to immediately move to rule on the alleged debt, ask for a continuance for 30 days (it's a hail mary to stop things and come back to re-group).  If the continuance is denied, then do your best to refute their claims and make them prove that they 1) Have the proper chain of custody showing they in fact own this account and 2) can show how they calculated the alleged amount owed.  Just deny knowledge of the amount or owing anything and force them to prove it. (also a hail mary).

 

 The United States Supreme Court has consistently explained that the FAA, which was enacted in 1925 as a response to judicial hostility to arbitration, establishes a liberal federal policy favoring arbitration agreements. McKenzie Check Advance of Florida, LLC v. Betts, 112 So.3d 1176, 1183 (Fla.2013)(See CompuCredit Corp. v. Greenwood, 132 S.Ct. 665, 669 (2012)).

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@Beachykeen You haven't filed an Answer to the Complaint in writing, you haven't sent requests for production of documents to plaintiff, and you have not answered any of their requests for documents, any questions in writing or made any written admissions to any statements, correct? You've attended a pre-trial conference where the judge suggested you and plaintiff privately discuss a settlement, and were unable to reach any agreement on a settlement, correct? 

Plaintiff may try to claim you waived your right to arbitration by your actions so far, but these rulings make a strong argument that you haven't. (I am not a lawyer.)

 

Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) :

"We have held that under both the Federal Arbitration Act and Florida's Arbitration Code there are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). We have long held that a party's contract rights may be waived by actually participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 680 (Fla.1973)."

 

"The Florida Supreme Court has found that the right of arbitration can be waived by actions inconsistent with the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005). The Florida Supreme Court warned that the right to arbitrate "must be safeguarded by a party who seeks to rely upon that right and the party must not act inconsistently with the right." Id. For example, the active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived. See Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003); see also Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 688 (Fla. 2d DCA 2009). 

 

"Florida courts have recognized "arbitration [a]s a favored means of dispute resolution," and, as so, this Court "should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it." EMSA Ltd. P'ship v. Mason, 677 So. 2d 105, 107 (Fla. 4th DCA 1996) (quoting Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988))." Ibis Lakes Homeowners As-sociation, Inc. v. Ibis Isle Homeowners As-sociation, Inc., 102 So. 3d 722, 728 (Fla. 4th DCA 2012).

"A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right." Inverrary Gardens Condo. I a$$'n, v. Spender, 939 So.2d 1159, 1161 (Fla. 4th DCA 2006) (quoting Breckenridge v. Farber, 640 So.2d 208, 211 (Fla. 4th DCA 1994)). In this regard, this Court, as well as the other district courts, has held that "propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration." McLeod, 15 So.3d at 688; Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) ("[T]he active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived." (emphasis added)); see also Olson Elec. Co. v. Winter Park Redevelopment Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811, 812-13 (Fla. 3d DCA 2007). Ibis Lakes Homeowners, 102 So. 3d at 731.

 

 

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1 hour ago, Brotherskeeper said:

@Beachykeen You haven't filed an Answer to the Complaint in writing, you haven't sent requests for production of documents to plaintiff, and you have not answered any of their requests for documents, any questions in writing or made any written admissions to any statements, correct? You've attended a pre-trial conference where the judge suggested you and plaintiff privately discuss a settlement, and were unable to reach any agreement on a settlement, correct? 

Plaintiff may try to claim you waived your right to arbitration by your actions so far, but these rulings make a strong argument that you haven't. (I am not a lawyer.)

 

Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) :

"We have held that under both the Federal Arbitration Act and Florida's Arbitration Code there are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). We have long held that a party's contract rights may be waived by actually participating in a lawsuit or taking action inconsistent with that right. Klosters Rederi A/S v. Arison Shipping Co., 280 So.2d 678, 680 (Fla.1973)."

 

"The Florida Supreme Court has found that the right of arbitration can be waived by actions inconsistent with the right to arbitrate. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla. 2005). The Florida Supreme Court warned that the right to arbitrate "must be safeguarded by a party who seeks to rely upon that right and the party must not act inconsistently with the right." Id. For example, the active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived. See Marine Envtl. Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003); see also Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 688 (Fla. 2d DCA 2009). 

 

"Florida courts have recognized "arbitration [a]s a favored means of dispute resolution," and, as so, this Court "should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it." EMSA Ltd. P'ship v. Mason, 677 So. 2d 105, 107 (Fla. 4th DCA 1996) (quoting Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988))." Ibis Lakes Homeowners a$$'n, Inc. v. Ibis Isle Homeowners a$$'n, Inc., 102 So. 3d 722, 728 (Fla. 4th DCA 2012).

"A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right." Inverrary Gardens Condo. I a$$'n, v. Spender, 939 So.2d 1159, 1161 (Fla. 4th DCA 2006) (quoting Breckenridge v. Farber, 640 So.2d 208, 211 (Fla. 4th DCA 1994)). In this regard, this Court, as well as the other district courts, has held that "propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration." McLeod, 15 So.3d at 688; Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) ("[T]he active participation in litigation or the propounding of discovery would be circumstances where the right to arbitrate would be deemed waived." (emphasis added)); see also Olson Elec. Co. v. Winter Park Redevelopment Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811, 812-13 (Fla. 3d DCA 2007). Ibis Lakes Homeowners, 102 So. 3d at 731.

 

 

This is very good info. I would suggest printing off these case names and excerpts to have in court with you as notes that you can refer to in the event the lawyer tries to say you waived your right by waiting too long.

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My God, you all are BRILLIANT. Thank you so very, very much. I honestly can't thank you enough. 

One last thing, @fisthardcheese, please ... may I ask if you'd please look over my Proposed Order? I tried to make it look similar to the formatting I found in an old Midland case in my county I found online. I'd love your opinion on whether I mucked it up. ❤️

(I've attached the Judge's Order I found online here)

IN THE COUNTY COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN

AND FOR BAY COUNTY, FLORIDA

CASE NO.:  XXXXX

MIDLAND FUNDING, LLC,
Plaintiff,

vs.

BEACHYKEEN.,

Defendant. _______________________________________/

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION


The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


_______ GRANTED      /    _______ DENIED

Further, this case shall be stayed pending the outcome of private arbitration.




DONE AND ORDERED, in Chambers at BAY County, Florida, this _____ day of _________________, 2019


_______________________________
COUNTY COURT JUDGE

Copies to:

_____________________________, Attorney for Plaintiff, P.O. Box 290335; Tampa, FL 33867 IL_FL@mcmcg.com

BEACHYKEEN 

 

10-38-2-11.pdf

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It's fine.  Proposed orders are very minor issues.  If the judge doesn't like something he will change it or write one up himself.  The Motion is the most important one.

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Wow! if i didn't know any better i would say that the order format looks like jurisdictionary guy, Freddy Graves, kind of document.

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On 7/22/2019 at 1:08 PM, Beachykeen said:

I absolutely CANNOT thank you enough. I'd offer to name my next born after you, but I'm afraid the factory's closed for business. xo

 

Do I need to withdrawal my motion?

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On 7/22/2019 at 10:27 AM, Beachykeen said:

 

I do not have an employer ~ rather, I do have an Etsy shop and a business account in my name.

 

I have an eBay account and I have been getting crazy amount of weird things going on with it. I have now shut it down. I have one order left to ship so I have their phone number and email address. I emailed them but checking to see if I should call or what I should do. I still can’t figure out if this is just one big joke on me or if I should reach out and see if this person can help me. What are your thoughts?

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@BV80 @fisthardcheese @Brotherskeeper

I am so terribly sorry to bother you, but just yesterday evening, a slew of documents were uploaded to the docket and I'm desperate for help interpreting what one in particular means ~

On 7/15, Midland filed a motion to Continue to Trial, just yesterday, the judge denied it. I'm attaching them here. May I ask what that means?

As of now, I'm still slated to have the meeting in judge's chambers this evening. I've not filed anything whatsoever as of yet, but am planning on taking the MTC (in triplicate) with my affidavit (again, in triplicate) and the Proposed Order. I'll even bring along a printed copy of the JAMS paperwork (in triplicate just in case) as well as a formal notice of election to arbitrate (again, of course, in triplicate).

DENIED.jpg

EP MOTION TO CONTINUE.jpg

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Well, bloody hell. That means that they asked for a continuance and were denied. Is that bad for me? 😕

 

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15 minutes ago, Beachykeen said:
 

Well, bloody hell. That means that they asked for a continuance and were denied. Is that bad for me? 😕

 

if your in chambers meeting is today you should take your MTC  with you and file just prior to the meeting. Any idea why judge denied their motion, and thats actually good.

 

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Just now, Robby8900 said:

if your in chambers meeting is today you should take your MTC  with you and file just prior to the meeting.

I thought I was supposed to hand-deliver it personally during the hearing (or whatever it's called in judge's chambers)?

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@Beachykeen It sounds like your trial on their account stated claim is still on for today. We need to look up the elements of an account stated claim under Florida rules. In my state, evidence that the balance claimed in the suit is disputed defeats a motion for summary judgment. It appears that plaintiff is admitting they need more time to conduct an investigation. You're also asserting that the arbitration clause is binding upon both parties, and that JAMS, not court, is the proper forum to decide these disputes.

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1 minute ago, Brotherskeeper said:

@Beachykeen It sounds like your trial on their account stated claim is still on for today. We need to look up the elements of an account stated claim under Florida rules. In my state, evidence that the balance claimed in the suit is disputed defeats the claim. It appears that plaintiff is admitting they need more time to conduct an investigation. You're also asserting that the arbitration clause is binding upon both parties, and that JAMS, not court, is the proper forum to decide these disputes.

Why would he deny the plaintiff's motion for a continuance? Does that mean that the judge thinks the claim is valid? Is the judge trying to help me (so to speak) or trying to make it harder for me?

I am so sorry I'm finding this so confusing. :( I really and truly do utterly appreciate all of your help. ❤️

I found this online WRT account stated claims in Florida:

__________________________________________________________________________________________________

COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges:

This is an action for damages that (insert jurisdictional amount).

Before the institution of this action plaintiff and defendant had business transactions between them and on …..(date)….., they agreed to the resulting balance.

Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement.

Defendant owes plaintiff $………. that is due with interest since …..(date)….., on the account.

WHEREFORE plaintiff demands judgment for damages against defendant.

NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

__________________________________________________________________________________________________

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Also, may I ask, IF I'm denied the MTC and a finding is made today, will Midland immediately attempt to seize my bank account? Or do I have time to appeal? x

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@fisthardcheese @BV80 @Brotherskeeper

I'm sorry for so many replies ~ but may I have another set of eyes on my documents? 

(Wherever I've made changes, I've highlighted it in red and bolded it)

This is my MTC, edited to indicate my desire for JAMS (versus AAA):

IN THE COUNTY COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN

AND FOR BAY COUNTY, FLORIDA

CASE NO.:  XXXX

MIDLAND FUNDING, LLC,

Plaintiff,

vs.

BEACHYKEEN,.,

Defendants. _______________________________________/

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION

AND TO STAY PROCEEDINGS PENDING ARBITRATION


COMES NOW the Defendant, BEACHYKEEN,, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about April 24, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration via JAMS based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

6. In addition, as per the Florida Sunshine Statutes, 682.02 Arbitration agreements made valid, irrevocable, and enforceable; scope.-

(1) 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 upon a ground that exists at law or in equity for the revocation of a contract.


7. The Defendant elects private arbitration via JAMS, pursuant to the Cardmember Agreement to settle this dispute.
 

THEREFORE, Defendant respectfully requests that this Honorable Court compel private contractual arbitration via JAMS, pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.


Respectfully submitted this day July 24, 2019
BEACHYKEEN,, Defendant, pro se

 

 

I CERTIFY that I personally presented a copy of this MOTION to:

PAYAL CHATANI / SEAN FISHER / MOLLY FITZPATRICK /  CHASE HOGUE / COLLEEN E. LEHMANN / VALERIA OBI / JOHAN A. GREEN, Attorneys for Plaintiff

By: BEACHYKEEN, Defendant, pro se

Date: July 24, 2019

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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My NOTICE OF ARBITRATION ELECTION. I don't think I NEED this, but it feels like I might need it and I'd hate to muck things up by not being utterly prepared.

I did copy and paste the exact verbiage from the cardmember agreement ~ that's why the one bit is in bold and set in all caps.

 

BEACHYKEEN

MIDLAND FUNDING LLC
P.O. BOX 2121
WARREN, MI  48090

JULY 24, 2019

CASE NO.:  XXX

 

NOTICE OF ARBITRATION ELECTION

Pursuant to COMENITY/HSN cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, " IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM."

The agreement further states, "Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party."

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

BEACHYKEEN

I CERTIFY that I personally presented a copy of this NOTICE to:

PAYAL CHATANI / SEAN FISHER / MOLLY FITZPATRICK /  CHASE HOGUE / COLLEEN E. LEHMANN / VALERIA OBI / JOHAN A. GREEN, Attorneys for Plaintiff

By: BEACHYKEEN, Defendant, pro se

Date: July 24, 2019

 

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And then the Proposed Order:

IN THE COUNTY COURT OF THE
FOURTEENTH JUDICIAL CIRCUIT IN

AND FOR BAY COUNTY, FLORIDA

CASE NO.:  XXX

MIDLAND FUNDING, LLC,
Plaintiff,

vs.

BEACHYKEEN.,

Defendant. _______________________________________/

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION


The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


_______ GRANTED      /    _______ DENIED

Further, this case shall be stayed pending the outcome of private arbitration.




DONE AND ORDERED, in Chambers at BAY County, Florida, this _____ day of _________________, 2019


_______________________________
COUNTY COURT JUDGE

Copies to:

_____________________________, Attorney for Plaintiff, P.O. Box 290335; Tampa, FL 33867 IL_FL@mcmcg.com

BEACHYKEEN


 

 

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53 minutes ago, Beachykeen said:

Why would he deny the plaintiff's motion for a continuance? Does that mean that the judge thinks the claim is valid? Is the judge trying to help me (so to speak) or trying to make it harder for me?

Nothing good comes from speculation and guessing.  The judge has his reasons and it is only based on procedure and law, not his personal opinion of you or the case (ideally - at least we must work under this assumption).

I noticed that the Plaintiff really offered no real reason for a continuance, so this could be the reason for denial.  You introducing your motion in court would give them a good reason for a continuance, however, also if you note that you do not object, could change the judge's mind and he might order a continuance.

Don't let nerves take you away from the focus.  You have your MTC that contains the solid case laws on why the judge must order arbitration.  This is all that matters today.

48 minutes ago, Beachykeen said:

Also, may I ask, IF I'm denied the MTC and a finding is made today, will Midland immediately attempt to seize my bank account? Or do I have time to appeal? x

You will have time.  I am confident this will not even be an issue.

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27 minutes ago, fisthardcheese said:

Nothing good comes from speculation and guessing.  The judge has his reasons and it is only based on procedure and law, not his personal opinion of you or the case (ideally - at least we must work under this assumption).

I noticed that the Plaintiff really offered no real reason for a continuance, so this could be the reason for denial.  You introducing your motion in court would give them a good reason for a continuance, however, also if you note that you do not object, could change the judge's mind and he might order a continuance.

Don't let nerves take you away from the focus.  You have your MTC that contains the solid case laws on why the judge must order arbitration.  This is all that matters today.

You will have time.  I am confident this will not even be an issue.

I am absolutely gushing, @fisthardcheese ~ you are BRILLIANT and I thank you so very, very much. xo

I'll post back the results, if anyone's interested. x

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@Beachykeen (I am not a lawyer.) As I understand from previous Florida posters, a defendant can waive the right to arb if it isn't asserted in the Answer. You haven't filed an answer. I know fisthardcheese wisely advises to keep things simple in a MTC. Even though the US Supreme Court ruling is the law Florida must follow, Florida has decided that (3) waiver below is a consideration that its courts can determine. I don't see the harm in including these 2 citations as #7 in your motion to compel. Then the current #7 become #8. 

 

7.  "We have held that under both the Federal Arbitration Act and Florida's Arbitration Code there are three elements for courts to consider in ruling on a motion to compel the arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)).

"Florida courts have recognized "arbitration [a]s a favored means of dispute resolution," and, as so, this Court "should resolve all doubts about the scope of an arbitration agreement as well as any questions about waivers thereof in favor of arbitration, rather than against it." EMSA Ltd. P'ship v. Mason, 677 So. 2d 105, 107 (Fla. 4th DCA 1996) (quoting Roe v. Amica Mut. Ins. Co., 533 So. 2d 279, 281 (Fla. 1988))." Ibis Lakes Homeowners As-sociation, Inc. v. Ibis Isle Homeowners As-sociation, Inc., 102 So. 3d 722, 728 (Fla. 4th DCA 2012). Defendant asserts there is 1.) a valid, enforceable, written agreement to arbitrate the disputes of the subject account, 2.) the disputes fall within the arbitrable claims under the Agreement's arbitration clause, and 3.) Defendant has not engaged in active participation in litigation or other acts inconsistent with the right upon learning of the right.

8. The Defendant elects private arbitration via JAMS, pursuant to the Cardmember Agreement to settle this dispute.

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