Want2beclear

Being Sued by Cavalry (Synchrony Bank) in MI

Recommended Posts

Hello.  I received my summons via personal delivery on July 22 or 23.  After doing some extensive research on this for the past week, I came across this forum and another user (@bitsyM) who was sued by the same attorney.  Her summons looked identical to mine with the exception of the court and alleged balance owed.  After deciding to follow her steps and ask for arbitration, I am asking for someone to take a look at my answer to the summons please.  I have also attached the original summons (minus the exhibits...included in that were 1) Bill of Sale from 2016, 2) a notification file of said purchase, 3) a Synchrony Bank information addendum stating APR, Fees, Rates, the credit card contract stating arbitration option, and 4) a credit card singly month statement.

 

I have about 12 days to file the Answer, but plan on doing it by this Friday.  Also, I am preparing a MTC for arbitration.  I should file that at the same time, correct?

 

Thanks in advance for any suggestions anyone might have.

 

 

Cavalry Summons - Private.pdf Civil Answer and Affirmative Defense private.docx

Share this post


Link to post
Share on other sites
1 hour ago, Want2beclear said:

I have about 12 days to file the Answer, but plan on doing it by this Friday.  Also, I am preparing a MTC for arbitration.  I should file that at the same time, correct?

It isn't necessary to file the MTC arb at the same time as your Answer, but you should file it soon after. If you reread BitsyM's thread, you'll see that she first sent (CMRRR) a notice of intent to arbitrate in JAMS, along with a Proposed Order for the MTC for plaintiff to stipulate to, if plaintiff would agree to waive the motion hearing. If a Proposed Order like that is sent and no response is received in 7 days, you can regard the Proposed Order as rejected; the rules state that you need to include an affidavit that simply states you sent the Proposed Order by CMRRR and no response was received, or it was declined. 

I think your Answer needs a little modification. (I am not a lawyer.) I'll look at it more closely tomorrow. Good start. 

Roughly, how much are you being sued for? 

Just to be super careful, can you post the Synchrony agreement attached to the Complaint? 

Share this post


Link to post
Share on other sites
35 minutes ago, Brotherskeeper said:

It isn't necessary to file the MTC arb at the same time as your Answer, but you should file it soon after. If you reread BitsyM's thread, you'll see that she first sent (CMRRR) a notice of intent to arbitrate in JAMS, along with a Proposed Order for the MTC for plaintiff to stipulate to, if plaintiff would agree to waive the motion hearing. If a Proposed Order like that is sent and no response is received in 7 days, you can regard the Proposed Order as rejected; the rules state that you need to include an affidavit that simply states you sent the Proposed Order by CMRRR and no response was received, or it was declined. 

I think your Answer needs a little modification. (I am not a lawyer.) I'll look at it more closely tomorrow. Good start. 

Roughly, how much are you being sued for? 

Just to be super careful, can you post the Synchrony agreement attached to the Complaint? 

Ah, yes, I remember the notice of intent to arbitrate. I think I have BitsyM's copy that I can modify for myself.  

The Answer I used were basically built from what I've read mostly from these forums.  I had a feeling I wouldn't be able to nail it on my first try. 

Attached is the credit card agreement that was included.Credit Card agreement.pdf

Oh, $1940.

Thanks for taking the time to take a look at my situation.  I really appreciate it.

Edited by Want2beclear
grammar

Share this post


Link to post
Share on other sites

@Want2beclear  First, are you a "her" or a "him"? (See quoted section below.) Proofread carefully to make certain you refer to your gender correctly in all of these cut and paste documents. Also, proofread to make certain your Synchrony/Sam's Club agreement is referred to correctly, and any quotes from that agreement are accurate. So many cut and paste efforts transfer mistakes that are missed. 

Second, you need to decide if you're going to send that notice of intent to arbitrate and proposed order out at the same time you file this Answer. Bitsy sent the letter but didn't include it as a defendant's exhibit attached to her Answer. Documents referred to in an affirmative defense should be attached, as they are then a part of the pleading. Bitsy forgot to include any mention of the enclosed Proposed Order in her letter. Post your draft notice of intent here before sending.  

If you have a chance to stop by your post office to pick up several of the green CMRRR cards, you should do so asap. That way you can include the CMRRR # in the notice letter to plaintiff. 

 

AFFIRMATIVE DEFENSES

1.    The existence of an agreement to arbitrate disputes. There is a binding arbitration clause in the governing cardholder agreement that takes away both parties litigation rights for claims subject to arbitration, if elected by either party.  Defendant has notified Plaintiff via its attorney of her election of a private arbitration forum pursuant to the terms of the Card Agreement. 
2.    Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff does not have standing to assert its claims and said complaint does not contain facts sufficient to support plaintiff’s claims. 

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Synchrony Bank Card agreement.
 

Share this post


Link to post
Share on other sites

@Want2beclear

I know that the fill-in civil answer court form uses the language "agree" or "disagree," but the MCR 2.111 rules state admit, deny, no contest or lacks knowledge or information sufficient to form a belief as to the truth of an allegation, are the choices. Since you're using a "hybrid" of the court form without the checked box statements and substituting your own responses, you aren't exactly following the rules. (IANAL) I realize BitsyM did this and it wasn't a problem for her in the end, as they dismissed right before her motion hearing. 

Rule 2.111 General Rules of Pleading

(C) Form of Responsive Pleading. As to each allegation on which the adverse party relies, a responsive pleading must

(1) state an explicit admission or denial;

(2) plead no contest; or

(3) state that the pleader lacks knowledge or information sufficient to form a belief as to the truth of an allegation, which has the effect of a denial.

(D) Form of Denials. Each denial must state the substance of the matters on which the pleader will rely to support the denial.

(E) Effect of Failure to Deny.

(1) Allegations in a pleading that requires a responsive pleading, other than allegations of the amount of damage or the nature of the relief demanded, are admitted if not denied in the responsive pleading.

(2) Allegations in a pleading that does not require a responsive pleading are taken as denied.

(3) A pleading of no contest, provided for in subrule (C)(2), permits the action to proceed without proof of the claim or part of the claim to which the pleading is directed. Pleading no contest has the effect of an admission only for purposes of the pending action.

[snip]

(3) Affirmative Defenses. Affirmative defenses must be stated in a party's responsive pleading, either as originally filed or as amended in accordance with MCR 2.118. Under a separate and distinct heading, a party must state the facts constituting

(a) an affirmative defense, such as contributory negligence; the existence of an agreement to arbitrate; assumption of risk; payment; release; satisfaction; discharge; license; fraud; duress; estoppel; statute of frauds; statute of limitations; immunity granted by law; want or failure of consideration; or that an instrument or transaction is void, voidable, or cannot be recovered on by reason of statute or nondelivery;

(b) a defense that by reason of other affirmative matter seeks to avoid the legal effect of or defeat the claim of the opposing party, in whole or in part;

(c) a ground of defense that, if not raised in the pleading, would be likely to take the adverse party by surprise.

Share this post


Link to post
Share on other sites
18 hours ago, Want2beclear said:

the exhibits...included in that were 1) Bill of Sale from 2016, 2) a notification file of said purchase, 3) a Synchrony Bank information addendum stating APR, Fees, Rates, the credit card contract stating arbitration option, and 4) a credit card singly month statement.

What is a notification file of said purchase?

There is no affidavit or sworn statement from Synchrony or Cavalry included as an exhibit, correct? If there is no affidavit from Synchrony or Cavalry, you can't refer to "Plaintiff's Affiant" in your Answer!

Does the single month credit card statement show your correct name and address and the amount of the lawsuit as a balance owed? 

Share this post


Link to post
Share on other sites

@Want2beclear I am not a lawyer. This is how I might answer if in your shoes:

JURISDICTION

1.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 1.

2.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2.

3.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3.

4.    Defendant admits.

5.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5, and therefore denies.

COUNT I

BREACH OF CONTRACT

6.    No response is required. Defendant incorporates by reference his responses in paragraphs 1 through 5.

7.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 7, and therefore denies.

8.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 8.

9.    Defendant admits Plaintiff has attached as a Complaint exhibit a copy of a contract that Plaintiff asserts is the contract that governs the subject account. Defendant denies a copy of the contract is in his possession.

10.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of each allegation in paragraph 10.

11.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 11, and therefore denies each allegation. 

12.     Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 12, and therefore denies each allegation. Plaintiff's conclusory statements are offered without attachment of sworn copies of the business records referenced in the Complaint.

13.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 13, and therefore denies each allegation. 

14.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 14, and therefore denies each allegation. Plaintiff's conclusory statements are offered without attachment of sworn copies of the business records referenced in the Complaint.

AFFIRMATIVE DEFENSES

1.    The existence of an agreement to arbitrate disputes. Plaintiff's Complaint has attached as an exhibit a copy of a "Sam's Club Personal Credit Card Agreement," that Plaintiff asserts is the applicable contract governing the subject account.  This Credit Card Agreement contains a binding arbitration clause that takes away both parties litigation rights for any disputes or claims subject to arbitration, if demanded by either party. ( See Plaintiff's Exhibit, page 3.) Defendant has notified Plaintiff via its attorney of his demand and his selection of JAMS as the private arbitration administrator, pursuant to the terms of the Agreement. A true copy of the arbitration demand notice sent to Plaintiff is attached as Defendant's Exhibit A. 

2.    Lack of standing. Plaintiff's conclusory statements as assignee are offered without the referenced sworn business records attached to the Complaint to show Plaintiff's ownership from its alleged assignor Synchrony Bank of the subject account.  

3.   Failure to state a claim upon which relief can be granted. Plaintiff fails to demonstrate its standing to bring its claims, and therefore fails to show it is entitled to the relief it seeks.  

WHEREFORE, Defendant respectfully asks this Honorable Court to dismiss this case, or in the alternative, to stay this case pending arbitration in JAMS, pursuant to the Synchrony Bank/Sam's Club Personal Credit Card Agreement.

Respectfully Submitted,
 

Edited by Brotherskeeper
Remove affidavit reference.

Share this post


Link to post
Share on other sites

Your first reply regarding the "her"   I made so many copy, paste, find/replaces, and re-words that I'm surprised I didn't mess up more.

Your second reply regarding the notification --  its basically a chart/print-out with  the last 4 of my account number, my name, address, Open date, current balance, and then a user defined field with the current balance again.  As for the affidavit or sworn statement from Cavalry, no.  I don't see anything signed.  It looks like they just submitted the exhibits.

Your third reply, yes, I think that is better.  I will make the changes and re-post my, hopefully, finished Answer.

 

6 hours ago, Brotherskeeper said:

Second, you need to decide if you're going to send that notice of intent to arbitrate and proposed order out at the same time you file this Answer. Bitsy sent the letter but didn't include it as a defendant's exhibit attached to her Answer. Documents referred to in an affirmative defense should be attached, as they are then a part of the pleading. Bitsy forgot to include any mention of the enclosed Proposed Order in her letter. Post your draft notice of intent here before sending.  

If you have a chance to stop by your post office to pick up several of the green CMRRR cards, you should do so asap. That way you can include the CMRRR # in the notice letter to plaintiff. 

 

AFFIRMATIVE DEFENSES

1.    The existence of an agreement to arbitrate disputes. There is a binding arbitration clause in the governing cardholder agreement that takes away both parties litigation rights for claims subject to arbitration, if elected by either party.  Defendant has notified Plaintiff via its attorney of her election of a private arbitration forum pursuant to the terms of the Card Agreement. 
2.    Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff does not have standing to assert its claims and said complaint does not contain facts sufficient to support plaintiff’s claims. 

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Synchrony Bank Card agreement.
 

So, what you're saying is that if I decide to send that notice of intent to arbitrate along with a proposed order...I should include that in my Answer as exhibits along with the CMRRR#s that I am sending the plaintiff, correct?

NEVER MIND.....I just re-read your suggested Affirmative Defense Paragraph 1.....where I said I stated "Defendant has notified Plaintiff via its attorney of his demand and his selection of JAMS as the private arbitration administrator, pursuant to the terms of the Agreement. A true copy of the arbitration demand notice sent to Plaintiff is attached to Defendant's Affidavit as Exhibit A.

 

 

 

 

Edited by Want2beclear
re-read/re-write correction

Share this post


Link to post
Share on other sites

Oh, and I need to look up whether i will actually use JAMS or AAA....I don't know if there is a specific benefit for using one over the other....If I decide to change it to AAA, I will make the necessary changes.

Share this post


Link to post
Share on other sites
8 minutes ago, Want2beclear said:

Your second reply regarding the notification --  its basically a chart/print-out with  the last 4 of my account number, my name, address, Open date, current balance, and then a user defined field with the current balance again. 

Who created this document? Does it say Synchrony Bank on it? Is this document titled, marked or noted in any way that is also referred to in the Bill of Sale?

 

5 hours ago, Brotherskeeper said:

There is no affidavit or sworn statement from Synchrony or Cavalry included as an exhibit, correct?

You didn't answer if there is an affidavit from Synchrony Bank. 

 

5 hours ago, Brotherskeeper said:

Does the single month credit card statement show your correct name and address and the amount of the lawsuit as a balance owed?

 

17 minutes ago, Want2beclear said:

So, what you're saying is that if I decide to send that notice of intent to arbitrate along with a proposed order...I should include that in my Answer as exhibits along with the CMRRR#s that I am sending the plaintiff, correct?

Yes. You have to attach the notice of intent as a true copy (aka "sworn") as an exhibit to your affidavit. I believe BitsyM has her example posted in her thread. She just forgot to mention in the body of the notice that she was also enclosing a proposed order for the motion to compel arbitration she was planning to file. 

Share this post


Link to post
Share on other sites

Here is copy of the Credit card agreement, as well as my what I have started as my notice of arbitration election.  

 

NOTICE OF ARBITRATION ELECTION

 

Pursuant to Sam's Club Personal Credit Card Agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If you do not reject it, this section will apply to your account, and most disputes between you and us will be subject to individual arbitration.  This means that: (1) neither Court nor a jury will resolve any such dispute; (2) You will not be able to participate in class action or similar proceedings; (3) less information will be available; and, (4) appeal rights will be limited.” “What Claims are subject to arbitration?  If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club.”

The agreement further states, “We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.”

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.

 

 

SamsClubMasterCard Agreement.pdf

Share this post


Link to post
Share on other sites
17 hours ago, Brotherskeeper said:

@Want2beclear  First, are you a "her" or a "him"? (See quoted section below.) Proofread carefully to make certain you refer to your gender correctly in all of these cut and paste documents. Also, proofread to make certain your Synchrony/Sam's Club agreement is referred to correctly, and any quotes from that agreement are accurate. So many cut and paste efforts transfer mistakes that are missed. 

Second, you need to decide if you're going to send that notice of intent to arbitrate and proposed order out at the same time you file this Answer. Bitsy sent the letter but didn't include it as a defendant's exhibit attached to her Answer. Documents referred to in an affirmative defense should be attached, as they are then a part of the pleading. Bitsy forgot to include any mention of the enclosed Proposed Order in her letter. Post your draft notice of intent here before sending.  

If you have a chance to stop by your post office to pick up several of the green CMRRR cards, you should do so asap. That way you can include the CMRRR # in the notice letter to plaintiff. 

 

AFFIRMATIVE DEFENSES

1.    The existence of an agreement to arbitrate disputes. There is a binding arbitration clause in the governing cardholder agreement that takes away both parties litigation rights for claims subject to arbitration, if elected by either party.  Defendant has notified Plaintiff via its attorney of her election of a private arbitration forum pursuant to the terms of the Card Agreement. 
2.    Plaintiff’s complaint fails to state a claim upon which relief can be granted. Plaintiff does not have standing to assert its claims and said complaint does not contain facts sufficient to support plaintiff’s claims. 

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Synchrony Bank Card agreement.
 

On the purposed Order, is that a joint stipulated dismissal with prejudice, and both parties pay their own cost.

Share this post


Link to post
Share on other sites

@Want2beclear  I'm sorry. I made a mistake. You are being sued for a breach of contract count and not an account stated claim. An affidavit is required with an answer on an account stated cause of action in Michigan. You'll need to submit an affidavit with your motion to compel arbitration. I've edited my suggestions for your Answer's Affirmative Defense paragraph 1 to indicate the correction shown below:

16 hours ago, Brotherskeeper said:

A true copy of the arbitration demand notice sent to Plaintiff is attached as Defendant's Exhibit A. 

When you draft the affidavit for the MTC, you'll state, "a true copy of the notice of arbitration election is attached as Defendant's Exhibit A."

Share this post


Link to post
Share on other sites
14 hours ago, Want2beclear said:

Pursuant to Sam's Club Personal Credit Card Agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

@Want2beclearThe Sam's Club Agreement you linked to is from 3/19. You need to make certain you are quoting from the agreement Plaintiff submitted with the Complaint. Make certain to include the court case number on the notice. If you send this CMRRR, include the number at the bottom. Here are my suggestions:

NOTICE OF ARBITRATION ELECTION

Pursuant to the Sam's Club Personal Credit Card Agreement submitted as a Complaint exhibit by Plaintiff Cavalry SPV I, LLC., I ELECT arbitration via JAMS to resolve all of our disputes.

As per the Agreement, "If you do not reject it, this section will apply to your account, and most disputes between you and us will be subject to individual arbitration.  This means that: (1) neither Court nor a jury will resolve any such dispute;" . . . .“What Claims are subject to arbitration?  If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club.”

The Agreement's Arbitration section further states, "1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit."

The Agreement also states, “We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.”

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.

Enclosed is a Proposed Order for your consideration.

USPS Certified Mail Return Receipt Requested #________________________

 

Here is an example of a Proposed Order that a few Michigan members have used. I can't vouch for its correctness. (IANAL) As far as I know, no plaintiff has signed this when sent with the notice letter or with the actual motion to compel. 

 

<<Court Caption Heading>>

 

[PROPOSED] ORDER FOR DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION

 

WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, IT IS HEREBY ORDERED that Defendant’s Motion shall be:

____DENIED.

____GRANTED.

 

IT IS FURTHER ORDERED:

____That this matter is Dismissed [with/without] Prejudice.

____To Stay proceedings pending Private/Contractual Arbitration in JAMS.

 

____I stipulate to the entry of the above order.

____Notice and hearing on entry of the above order is waived.

 

Dated________________                               by______________________________________

                                                                        Attorney Name

                                                                        Attorney for Plaintiff

 

 

SO ORDERED, on this ______day of __________________, 2019.

 

                                                                        __________________________________________

                                                                        Hon. <Judge’s name>

                                                                        District Court Judge

 

Share this post


Link to post
Share on other sites
6 hours ago, Robby8900 said:

On the purposed Order, is that a joint stipulated dismissal with prejudice, and both parties pay their own cost.

No. the Proposed (Judge's) Order is a part of the motion to compel arb papers submitted to the court. It has a section that the opposing party can stipulate to the order and/or waive the motion hearing. In Michigan, the rules and some judges require the parties to first seek "concurrence" on a motion before filing it. If you send the proposed order, and there's no response in 7 days, you can assume that it has been rejected--concurrence denied. You have to note on the motion that concurence was sought. 

Share this post


Link to post
Share on other sites
3 hours ago, Brotherskeeper said:

@Want2beclearThe Sam's Club Agreement you linked to is from 3/19. You need to make certain you are quoting from the agreement Plaintiff submitted with the Complaint. Make certain to include the court case number on the notice. If you send this CMRRR, include the number at the bottom. Here are my suggestions:

Yes, the one from 3/19 appears to be the same from the one the plaintiff included in the summons.  I downloaded it to easily copy the text instead of risking typos and errors.

 

Quote

NOTICE OF ARBITRATION ELECTION

Pursuant to the Sam's Club Personal Credit Card Agreement submitted as a Complaint exhibit by Plaintiff Cavalry SPV I, LLC., I ELECT arbitration via JAMS to resolve all of our disputes.

As per the Agreement, "If you do not reject it, this section will apply to your account, and most disputes between you and us will be subject to individual arbitration.  This means that: (1) neither Court nor a jury will resolve any such dispute;" . . . .“What Claims are subject to arbitration?  If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Sam’s Club.”

The Agreement's Arbitration section further states, "1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit."

The Agreement also states, “We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.”

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.

Enclosed is a Proposed Order for your consideration.

USPS Certified Mail Return Receipt Requested #________________________

 

Here is an example of a Proposed Order that a few Michigan members have used. I can't vouch for its correctness. (IANAL) As far as I know, no plaintiff has signed this when sent with the notice letter or with the actual motion to compel. 

I am stopping by the post office today to pick up the CMRRRs as you suggested. 

 

Quote

 

<<Court Caption Heading>>

 

[PROPOSED] ORDER FOR DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION

 

WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, IT IS HEREBY ORDERED that Defendant’s Motion shall be:

____DENIED.

____GRANTED.

 

IT IS FURTHER ORDERED:

____That this matter is Dismissed [with/without] Prejudice.

____To Stay proceedings pending Private/Contractual Arbitration in JAMS.

 

____I stipulate to the entry of the above order.

____Notice and hearing on entry of the above order is waived.

 

Dated________________                               by______________________________________

                                                                        Attorney Name

                                                                        Attorney for Plaintiff

 

 

SO ORDERED, on this ______day of __________________, 2019.

 

                                                                        __________________________________________

                                                                        Hon. <Judge’s name>

                                                                        District Court Judge

 

I will make the suggested changes to my proposed order and re-post all the documents that I have revised this evening.

 

I cannot thank you enough for the help and suggestions you've provided.  

Share this post


Link to post
Share on other sites

@BV80 @fisthardcheese @Harry Seaward Do you think admitting the contract is attached as an exhibit in #9 implies admitting entering into the contract? 

8.  That on or about October 30, 2012, Defendant entered into a contract with Plaintiff's assignor, Synchrony Bank/Sam's Club, for goods sold and delivered and/or services rendered on open account, Account Number(s): ************1263.

Answer:  8.    Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 8.

9.  That a copy of the contract is attached or, alternatively, the contract is in possession of the Defendant pursuant to MCR 2.113(F)(1)(b) (see attached exhibits).

Answer: 9.    Defendant admits Plaintiff has attached as a Complaint exhibit a copy of a contract that Plaintiff asserts is the contract that governs the subject account. Defendant denies a copy of the contract is in his possession.

 

 

Share this post


Link to post
Share on other sites
10 hours ago, Brotherskeeper said:

You'll need to submit an affidavit with your motion to compel arbitration

Is the affidavit a separate document that is filed out or can it be part of the MTCA?  This is what I have prepared for the affidavit.  What I'm not sure is if the exhibit needs court headings...I'm sill looking it up.

 

 

Affidavit with Exhibit.pdf

Share this post


Link to post
Share on other sites
4 hours ago, Brotherskeeper said:

 Do you think admitting the contract is attached as an exhibit in #9 implies admitting entering into the contract? 

I might stipulate that a copy of A contract is attached, but the defendant has no knowledge of the attached copy is THE agreement that applies to the account in question.   

That being said, what is the date on the contract and are we looking into arbitration?

Share this post


Link to post
Share on other sites
7 minutes ago, BV80 said:

I might stipulate that a copy of A contract is attached, but the defendant has no knowledge of the attached copy is THE agreement that applies to the account in question.   

That being said, what is the date on the contract and are we looking into arbitration?

Yes, I am looking to arbitrate.  I have drafted my Answers with Affirmative Defense requesting arbitration.  I have also drafted the notice of intent to arbitrate and proposed order for MTCA.  I have drafted the Affidavit with exhibit as well as the MTCA.  I have not filed anything as of today, but would like to get the answers filed soon (Its only been 8 days since I was served, but I'm not one to wait til last minute).

Date on the contract.....they said I entered on or about Oct 30, 2012

 

Would you like me to post my current drafted answers?  I am not sure how to word what you suggested tho....

Share this post


Link to post
Share on other sites
1 hour ago, BV80 said:

I might stipulate that a copy of A contract is attached, but the defendant has no knowledge of the attached copy is THE agreement that applies to the account in question.   

That being said, what is the date on the contract and are we looking into arbitration?

Yes, arbitration is listed as an affirmative defense in his answer. He's sending a notice of intent to arbitrate and a proposed order for plaintiff to stipulate to (unlikely), and will file a MTC soon. Plaintiff's attached contract has no date on it that I could see. 

5 hours ago, Brotherskeeper said:

9.  That a copy of the contract is attached or, alternatively, the contract is in possession of the Defendant pursuant to MCR 2.113(F)(1)(b) (see attached exhibits).

Answer: 9.    Defendant admits Plaintiff has attached as a Complaint exhibit a copy of a contract that Plaintiff asserts is the contract that governs the subject account. Defendant denies a copy of the contract is in his possession.

9.  Defendant admits Plaintiff has attached, as a Complaint exhibit, a copy of a contract that Plaintiff asserts is the contract that governs the subject account, but Defendant lacks knowledge or information sufficient to form a belief as to the truth of Plaintiff's assertion. Defendant denies a copy of the contract is in his possession.

  • Like 1

Share this post


Link to post
Share on other sites
1 hour ago, Want2beclear said:

Is the affidavit a separate document that is filed out or can it be part of the MTCA? 

The affidavit is a separate document that is filed with the motion and the other motion papers, including any exhibits. 

1 hour ago, Want2beclear said:

This is what I have prepared for the affidavit. 

This needs some work. You will need to include a statement about first seeking concurrence with the proposed order, so you'll need to wait the 7 days to see what, if any, response the attorney gives.

1 hour ago, Want2beclear said:

What I'm not sure is if the exhibit needs court headings...I'm sill looking it up.

This notice of intent to arb is a business-type letter, with a professional header, that includes your name, address, email, phone, then the date, along with Plaintiff's name (as written on the summons) with the attorney's name, lawfirm, address. It should have RE: Cavalry SPV I, LLC. v. Want2bclear, case number xxxxx. This exhibit is to be filed with the court without a court heading because it is a letter sent from you as a pro se to plaintiff via its attorney. It only becomes a court document when it is attached as a true copy to your affidavit, marked as your exhibit and filed with your MTC. You can hand write in "Exhibit A" on the top right or bottom right of the copy of the document, or take a blank sheet of paper and type in bold, very large font and centered on the sheet and staple it as a cover sheet:

Exhibit A

Share this post


Link to post
Share on other sites
1 hour ago, Brotherskeeper said:

This needs some work. You will need to include a statement about first seeking concurrence with the proposed order, so you'll need to wait the 7 days to see what, if any, response the attorney gives.

I updated paragraph 2 of the affidavit to this:

 

3.  On August _ 2019, I sent a letter by USPS certified mail return receipt requested (CMRRR) to Plaintiff's attorney notifying Plaintiff of my intent to exercise my contractual right to elect private contractual arbitration via JAMS, as per the account agreement's Arbitration Clause. I also included a copy of the Proposed Order for Plaintiff to stipulate to or reject to.  The election letter and Proposed Order were signed for on August __, 2019.  As of <date>, I have had no communication from Plaintiff about concurrence sought in the Proposed Order.  A true and correct copy of the letter, Proposed Order, and CMRRR receipt is attached as Exhibit B.

Share this post


Link to post
Share on other sites
31 minutes ago, Brotherskeeper said:

This notice of intent to arb is a business-type letter, with a professional header, that includes your name, address, email, phone, then the date, along with Plaintiff's name (as written on the summons) with the attorney's name, lawfirm, address. It should have RE: Cavalry SPV I, LLC. v. Want2bclear, case number xxxxx. This exhibit is to be filed with the court without a court heading because it is a letter sent from you as a pro se to plaintiff via its attorney. It only becomes a court document when it is attached as a true copy to your affidavit, marked as your exhibit and filed with your MTC. You can hand write in "Exhibit A" on the top right or bottom right of the copy of the document, or take a blank sheet of paper and type in bold, very large font and centered on the sheet and staple it as a cover sheet:

I am stating for the record that I am sorry for the next few questions, but I am a little confused regarding the attaching of the Notice of Arbitration letter that I am sending to the Plaintiff. 

In my Answer (under the affirmative defense portion) I state that a "true copy of the arbitration notice sent to the Plaintiff is attached as Defendant's Exhibit A"........So, when I file my Answer, I just submit it with the cover page stating Exhibit A and the Notice of Arbitration and Proposed Order that was sent?  

Then, I need to wait a week (because I need to wait for the Plaintiff to respond to my Proposed Order and notification) to file my MTC to compel arbitration.  When I file MTC, I need to file the Affidavit with the Notice of Arbitration, Proposed Order and the signed CMRRR as Exhibit B.  (not sure why i would submit the Notice and Proposed Order as part of Exhibit B tho....??)

Does that sound correct?

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.