Want2beclear

Being Sued by Cavalry (Synchrony Bank) in MI

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24 minutes ago, Want2beclear said:

I made a mistake and sent them an original

This is not a mistake. They get the original signed letter. You were to make copies of the signed original before mailing it. 

26 minutes ago, Want2beclear said:

The letters were identical, but the signatures are not the same....both mine, but not identical, obviously.

OK. The letter is identical to the one sent; you signed your copy after the original was mailed. (IANAL) I would drop the "true and correct" in favor of a true copy. Here's the Black's Law definition of a true copy for you to consider:

TRUE COPY
THELAW.COM LAW DICTIONARY & BLACK'S LAW DICTIONARY 2ND ED.

A faithful duplicate of an original document that is virtually identical and sufficient for its purposes to act as one.

 

35 minutes ago, Want2beclear said:

(This is because I need to slow down and pay better attention).  

Exactly right. You're about to file a very important motion in court before a judge. 

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3 hours ago, Brotherskeeper said:

Exactly right. You're about to file a very important motion in court before a judge. 

OK, I have read, re-read, and re-re-read the below attached documents and I believe I have made all of the necessary corrections.  If you wouldn't mind taking a look, I'd appreciate it. 

In paragraph 3, I state that I attached in my Exhibit a: true copy of Notice of Arbitration Election, Proposed Order, and the CMRRR....I also included the stamped receipt that shows I did send it (even though that is kind of redundant being that I have the signed receipt). 

Do you think I should remove the stamped receipt?

Thanks!

 

 

MTCA - Private.pdf AFFIDAVIT - Private.pdf

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On 8/10/2019 at 5:45 PM, Brotherskeeper said:

NOW COMES XXXXX, Defendant pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT, pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following: 

You wrote:

"NOW COMES XXXXX, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank Card Agreement, ("the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following:"

 

You are either a Defendant pro se, or a Defendant in propria persona (in pro per), but not "in pro se."

(IANAL) I suggested you add "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT" after "Synchrony Bank" because that's the name on the agreement Plaintiff said is the contract. 

 

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On 8/2/2019 at 9:10 AM, Brotherskeeper said:

No, the notice and proposed order are still Exhibit A. Now you're including evidence of how that Exhibit A was mailed and received by the opposing party. In your affidavit, you're stating facts under penalty of perjury of what you mailed, how you mailed it, that it was received and signed for, and that you received no response before filing the motion. 

Correction #1  Your Motion states:

"3. Defendant sent a letter via USPS Certified Mail Return Receipt Requested to Plaintiff’s attorney on August 2, 2019, electing arbitration with Judicial Arbitration and Mediation Services, Inc. (JAMS) and requesting dismissal or stay of this case pending arbitration. A copy of the Proposed Order for this Motion was enclosed with the Defendant’s arbitration election notice. A true copy of the written election notice, Proposed Order and signed Return Receipt are attached to the affidavit of XXXXX as Defendant’s Exhibit B.

But, your Affidavit states: 

 "A true copy of the Notice of Arbitration Election letter, Proposed Order, and the CMRRR signed receipt are attached as Exhibit A."

I don't think you have an Exhibit B.

 

Correction #2.  MTCA--I think this should read AT&T Mobility L.L.C. v. Concepcion, rather than Mobility in all caps:

"6. The Supreme Court emphasized in its decision in AT&T MOBILITY L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored." 

 

Correction #3.  I noticed a typo in paragraph 6:

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 StoltNielsen S.A. v. AninalFeeds Int’l Corp., 559 U.S.___, ___ (2010) (slip op., at 17). This purpose..."

The correct case cite taken from the decision reads: Stolt-Nielson S.A. v. AnimalFeeds Int'l Corp as shown below: 

see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17).

 

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19 hours ago, Brotherskeeper said:

"NOW COMES XXXXX, Defendant in pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank Card Agreement, ("the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following:"

 

You are either a Defendant pro se, or a Defendant in propria persona (in pro per), but not "in pro se."

(IANAL) I suggested you add "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT" after "Synchrony Bank" because that's the name on the agreement Plaintiff said is the contract. 

OK, so if I change this: 

"...and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT, (" the Agreement")"

In -->       1.    Defendant was personally served with the Summons and Complaint in the above-captioned matter on July 23, 2019. Plaintiff alleges, "as assignee of Synchrony Bank," that an account with "Synchrony Bank/Sam's Club" belonging to Defendant was "transferred, sold and/or assigned" to Plaintiff. Attached as a Complaint exhibit is a “SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT,” ("the Agreement"), that Plaintiff asserts is the contract that governs the subject account. "Section III: Standard Provisions" of this Agreement contains a binding Arbitration provision (Plaintiff’s Complaint Exhibit, pages 2-4), incorporated herein by reference.

Do I remove the red text and just leave it "the Agreement?"   --I don't quite understand how to refer to things correctly....

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18 hours ago, Brotherskeeper said:

"6. The Supreme Court emphasized in its decision in AT&T MOBILITY L.L.C. v. Concepcion, 563 U.S. 333 (2011), that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored." 

I made the change to Mobility

18 hours ago, Brotherskeeper said:

The correct case cite taken from the decision reads: Stolt-Nielson S.A. v. AnimalFeeds Int'l Corp as shown below: 

see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17).

It was correct in the non-private version, but I made that change in the private version I uploaded.

19 hours ago, Brotherskeeper said:

But, your Affidavit states: 

 "A true copy of the Notice of Arbitration Election letter, Proposed Order, and the CMRRR signed receipt are attached as Exhibit A."

I don't think you have an Exhibit B.

 

Yeah, the private version I uploaded was incorrect....but the non-private version was correct.  Nonetheless, I made that correct changes to the private version.

I will upload them shortly, if you wouldn't mind another look-through.  

 

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@Want2beclear (IANAL) I would delete the ("the Agreement") in the Now Comes paragraph as shown below. Keep paragraph 1 as is, with ("the Agreement") appearing for the first time. 

NOW COMES XXXXX, Defendant pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the Synchrony Bank "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT," pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following:

1.    Defendant was personally served with the Summons and Complaint in the above-captioned matter on July 23, 2019. Plaintiff alleges, "as assignee of Synchrony Bank," that an account with "Synchrony Bank/Sam's Club" belonging to Defendant was "transferred, sold and/or assigned" to Plaintiff. Attached as a Complaint exhibit is a “SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT,” ("the Agreement"), that Plaintiff asserts is the contract that governs the subject account. "Section III: Standard Provisions" of this Agreement contains a binding Arbitration provision (Plaintiff’s Complaint Exhibit, pages 2-4), incorporated herein by reference.

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@Want2beclear It's probably super nitpicky, but the first time you cite an exhibit or pleading, you don't abbreviate it; after the first full mention, you can abbreviate it. Once you start using abbreviations, you should use them consistently. Example: (Defendant's Answer, Affirmative Defense I), then abbreviated as (Def.'s Answer., Aff. Def. I); (Plaintiff's Complaint Exhibit, pages 2-4.), then abbreviated as (Pl.'s Compl. Ex., pp 2-4). In the MTCA at ¶ 2, you've created a hybrid: (Defendant's Answer, Aff. Def. I). Since it's the first use, it should read (Defendant's Answer, Affirmative Defense I).

In the MTCA at ¶ 3, I would capitalize the "a" in Affidavit of Want2bclear. 

http://www.personal.psu.edu/dhk3/research/Bluebook/T-08-17.htm

http://www.personal.psu.edu/dhk3/research/Bluebook/T-16.htm

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14 hours ago, Brotherskeeper said:

(IANAL) I would delete the ("the Agreement") in the Now Comes paragraph as shown below. Keep paragraph 1 as is, with ("the Agreement") appearing for the first time.

Done!  

13 hours ago, Brotherskeeper said:

In the MTCA at ¶ 2, you've created a hybrid: (Defendant's Answer, Aff. Def. I). Since it's the first use, it should read (Defendant's Answer, Affirmative Defense I).

In the MTCA at ¶ 3, I would capitalize the "a" in Affidavit of Want2bclear.

Those make complete sense and I have made the suggested changes. 

13 hours ago, Brotherskeeper said:

Never realized there were so many abbreviations! 

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@Brotherskeeper

So, I've been re-reading BitsyM's thread to get a better understanding of what the process is once I begin the filing of the MTCA. 

Is this correct?

  1.   I will need to get my Affidavit notarized, make 3 additional copies of the notarized MTCA & Affidavit.  The original gets filed with court, a copy is sent to Plaintiff.  Label a copy for Judge, in case it is  required.  BitsyM said she had her exhibits labeled....Is that done by the court...like an Exhibit stamp?  or is it enough that my affidavit has a page stating Exhibit A?
  2.  At the same time, I will be required to file a Notice of Hearing.
  3.  Also, when I send a copy of the MTCA to the Plaintiff, should I do another CMRRR or will the Proof of Service section in the MTCA that I am filing be sufficient?

 I have downloaded the Notice of Hearing and Motion and have begun to fill it out.  Looks pretty straight forward.  However, I have a question:

  1. In the area where it says Motion, I should enter that:  I move the court to compel private arbitration based on the Synchrony Bank "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT, pursuant to MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority.

 

 

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On 8/8/2019 at 1:36 PM, Brotherskeeper said:

(d) A copy of a motion or response (including brief) filed under this rule must be provided by counsel to the office of the judge hearing the motion. The judge's copy must be clearly marked JUDGE’S COPY on the cover sheet; that notation may be handwritten.

(3) A motion and notice of the hearing on it may be combined in the same document.

Just wanted to make sure that you send Plaintiff and file a Notice of Hearing and Motion. Also, ask the clerk if your judge requires a separate "Judge's Copy" of all of the MTC motion papers that you file with the court. 

On 8/8/2019 at 1:36 PM, Brotherskeeper said:

Here is the MI Supreme Court Approved general fill-in form for the Notice of Hearing and Motion. In the "Motion" section you can write, "See attached Motion, affidavit and exhibits." or something like that, then attach your separate MTC with its own court heading and motion title, or you can I suppose write in your MTC in the space provided and extend it to several pages as needed. (IANAL)

https://courts.michigan.gov/Administration/SCAO/Forms/courtforms/mc326.pdf 

 

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1 hour ago, Want2beclear said:

Is this correct?

  1.   I will need to get my Affidavit notarized, make 3 additional copies of the notarized MTCA & Affidavit.  The original gets filed with court, a copy is sent to Plaintiff.  Label a copy for Judge, in case it is  required.

Yes, affidavits are signed, or sworn to and signed, in the presence of a notary, and then the notary signs and/or affixes the seal if required. Yes, a copy of the original (signed, notarized) affidavit goes to Plaintiff, then the original with the proof of service to Plaintiff gets filed with the court. Sorry, I posted my latest before I read your most recent post. Call the clerk, or ask the clerk when you schedule the MTC hearing time and date if your judge wants a "judge's copy" before you waste the paper. Remember to make copies of everything sent to Plaintiff and submitted to court for your own files

1 hour ago, Want2beclear said:

BitsyM said she had her exhibits labeled....Is that done by the court...like an Exhibit stamp?  or is it enough that my affidavit has a page stating Exhibit A?

No, the court does not label your exhibits, you do. The "Exhibit A" cover sheet that you posted is fine. It's also acceptable to hand write it in at the top or bottom right corner of the first page, but your cover sheet stapled to the entire contents of Exhibit A looks more professional IMO. Law firms use digital exhibit labels for electronic filings or an old-fashioned exhibit ink stamp and pad or a printed exhibit label sticker, but some use the cover sheet as you have. 

1 hour ago, Want2beclear said:

 At the same time, I will be required to file a Notice of Hearing.

You need to get on the court's schedule for motion hearings. Some judges have specific days for hearings. The Notice is to let the Plaintiff know what kind motion is being heard and the date, time and location of the hearing. Attaching the actual MTCA to the Notice of Motion and Hearing is allowed by MCR 2.119. 

 

1 hour ago, Want2beclear said:

 Also, when I send a copy of the MTCA to the Plaintiff, should I do another CMRRR or will the Proof of Service section in the MTCA that I am filing be sufficient?

At the bottom of the court form (shown below) it states first-class mail, so first-class mail must be an accepted method. If you sign this you are certifying (swearing) that you sent it by the method stated in the certificate of mailing. If you sent it by another method, like CMRRR, you must change the wording and then swear (certify) to that. (IANAL) I know of no requirement that the notice of motion and hearing be served CMRRR. Please reread the MCR 2.119 motion practice rules I posted previously to make certain you're compliant with them.  

 CERTIFICATE OF MAILING

I certify that on this date I served a copy of this notice of hearing and motion on the parties or their attorneys by first-class mail addressed to their last-known addresses as defined by MCR 2.107(C)(3).

1 hour ago, Want2beclear said:

In the area where it says Motion, I should enter that:  I move the court to compel private arbitration based on the Synchrony Bank "SAM'S CLUB PERSONAL CREDIT CARD ACCOUNT AGREEMENT, pursuant to MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority.

(IANAL) As I mentioned in a prior post, I believe you can fill-in the "Motion" section with something like, "See the attached Motion, Affidavit and Exhibit A,"  or "See the attached Motion to Compel Arbitration, Affidavit and Exhibit A."  The form has a place for the Motion Title:  Motion to Compel Private/Contractual Arbitration and Dismiss,or in the Alternative, to Stay the Proceedings Pending Arbitration. Moving Party: Defendant pro se, Want2beclear. 

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43 minutes ago, Brotherskeeper said:

As I mentioned in a prior post, I believe you can fill-in the "Motion" section with something like, "See the attached Motion, Affidavit and Exhibit A,"  or "See the attached Motion to Compel Arbitration, Affidavit and Exhibit A." 

Just to be clear...the attached Motion, Affidavit and Exhibit A  will be a copy of the one I signed and actually filed with the court, correct?  

 

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1 hour ago, Want2beclear said:
 

Just to be clear...the attached Motion, Affidavit and Exhibit A  will be a copy of the one I signed and actually filed with the court, correct?  

 

After you get the the MTCA hearing date and time scheduled with the clerk, you will fill in that info on the Notice of Motion and Hearing, including the certificate of service to Plaintiff. (The court requires you to serve Plaintiff copies of everything you file with it, and swear that you did so.)  The original Notice of Motion and Hearing that you file with the court clerk will have attachments:

1.) actual Motion to compel arbitration with your "wet ink" signature,

2.) original "wet ink" signed/notarized Affidavit of Want2bclear,

3.) "Exhibit A" documents, including a color photocopy of the CMRRR signed receipt, and

4.) the signed certificate of service (which may in your case be at the bottom of the Notice/Hearing form).

Photocopies of the above items (the Notice of Motion and Hearing with all attachments) will be mailed to the Plaintiff on the date and by the method sworn to on the certificate of service. If the judge requires his/her own copy, then photocopies of everthing filed with the court go to the judge, marked "judge's copy" on it. Another set of photocopies of everything filed with the court and stamped by clerk and/or sent to the Plaintiff are for your files. I would make a photocopy of the addressed, stamped envelope that you mail the Plaintiff's copy in. 

Does this answer your question?

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31 minutes ago, Brotherskeeper said:

After you get the the MTCA hearing date and time scheduled with the clerk, you will fill in that info on the Notice of Motion and Hearing, including the certificate of service to Plaintiff. (The court requires you to serve Plaintiff copies of everything you file with it, and swear that you did so.)  The original Notice of Motion and Hearing that you file with the court clerk will have attachments:

1.) actual Motion to compel arbitration with your "wet ink" signature,

2.) original "wet ink" signed/notarized Affidavit of Want2bclear,

3.) "Exhibit A" documents, including a color photocopy of the CMRRR signed receipt, and

4.) the signed certificate of service (which may in your case be at the bottom of the Notice/Hearing form).

Photocopies of the above items (the Notice of Motion and Hearing with all attachments) will be mailed to the Plaintiff on the date and by the method sworn to on the certificate of service. If the judge requires his/her own copy, then photocopies of everthing filed with the court go to the judge, marked "judge's copy" on it. Another set of photocopies of everything filed with the court and stamped by clerk and/or sent to the Plaintiff are for your files. I would make a photocopy of the addressed, stamped envelope that you mail the Plaintiff's copy in. 

Does this answer your question?

Yes, that was an extremely thorough explanation...and I appreciate that.  (I'm pretty sure there is a joke here about the amount of hand holding I've been asking you to do with me....but I'll refrain from it and simply state Thank You.  I sincerely appreciate the amount of time and effort you have put into my case.  If others in this world displayed this type of kindness more often, we would live in a much better place).   

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12 minutes ago, Want2beclear said:

Yes, that was an extremely thorough explanation...and I appreciate that.  (I'm pretty sure there is a joke here about the amount of hand holding I've been asking you to do with me....but I'll refrain from it and simply state Thank You. 

You're most welcome. Listen, you're being tasked with learning a whole new skill set in a whole new language under duress with high stakes. If you don't ask, you might make a mistake and not even know it until it's too late. Your thread will contain a lot of information to help the next poor deer in the headlights soul who finds his/her way to this forum. 

 

18 minutes ago, Want2beclear said:

I sincerely appreciate the amount of time and effort you have put into my case.  If others in this world displayed this type of kindness more often, we would live in a much better place).   

Thank you. My participation on this forum began as way to "pay it forward," and I encourage everyone here who gets a helping hand during a difficult time to do the same in any way they choose. A little unexpected kindness can be a powerful thing. 

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@Brotherskeeper  I'm getting ready to file my MTCA and Affidavit.  When I looked at the Exhibit pages, I see I put headings on such as below (because they are part of my Affidavit).  Is that correct?  Or should they just be blank headings...or does it not really matter? 

image.png.615f2944c48de638e9ec159149627215.png

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54 minutes ago, Want2beclear said:

I'm getting ready to file my MTCA and Affidavit.  When I looked at the Exhibit pages, I see I put headings on such as below (because they are part of my Affidavit).  Is that correct?  Or should they just be blank headings...or does it not really matter? 

Never mind....I see in my Affidavit that it is says...."attached as Exhibit A."   It's all together as one document.

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2 hours ago, Want2beclear said:
 

Never mind....I see in my Affidavit that it is says...."attached as Exhibit A."   It's all together as one document.

You have several pieces of paper or written documents that are grouped together into an exhibit you've marked as Exhibit A. You are filing this Affidavit in support of your Motion to compel, to state facts made on your personal knowledge and as evidence establishing the grounds stated in your Motion. You refer to Exhibit A in your Affidavit, therefore you have to attach it as a "sworn" (aka true or true and correct copy) to your Affidavit.   

B. Affidavit (If Required)
“An affidavit must be verified by oath or affirmation.” MCR 1.109(D)(1)(f). “If an affidavit is filed in support of or in opposition to
a motion, it must:
     (a) be made on personal knowledge;
     (b) state with particularity facts admissible as evidence establishing or denying the grounds stated in the motion; and
     (c) show affirmatively that the affiant, if sworn as a witness, can testify competently to the facts stated in the affidavit.” MCR 2.119(B)(1).

An affidavit is valid if it is: “(1) a written or printed declaration or statement of facts, (2) voluntarily made, and (3) confirmed by the oath or affirmation of the party making it, taken before a person having authority to administer such oath or affirmation.” Sherry v East
Suburban Football League
, 292 Mich App 23, 31 (2011). An affidavit lacking notarization is invalid, and a trial court may refuse to
consider it sua sponte or on motion by a party. Id.

All documents or parts of documents that are referred to in the affidavit must be attached to the affidavit as sworn or certified copiesunless the documents:
     “(a) have already been filed in the action;
      (b) are matters of public record in the county in which the action is pending;
      (c) are in the possession of the adverse party, and this fact is stated in the affidavit or motion; or
      (d) are of such nature that attaching them would be unreasonable or impracticable, and this fact and the reasons are stated in the affidavit or the motion.” MCR 2.119(B)(2).

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@Brotherskeeper  I have filed my MTCA and Affidavit along with my Notice of Hearing.  I then made copies of those and sent copies to the Plaintiff.  I have a pre-trial hearing set for Sept 11.  I will research what happens at a pre-trial hearing and plan accordingly.  I have yet to hear from the Plaintiff.

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