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Robby8900

Friend filed motion to dismiss for failure to prosecute

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50 minutes ago, Robby8900 said:

I agree, but he did bring up the arbitration mentioned in the affidavit, without stating that the defendant failed to answer the complaint or assert arbitration as an ''affirmative Defense''. As you see, he made the arbitration most of the response, without denying or objecting to it. He attempting to separate that arb clause to avoid the issue of arbitration.

Perhaps he was simply addressing the issues raised in the MTD and attached affidavit.  

Yes, he’s attempting to separate the provision from the Retail Installment Agreement, but that’s his job.   And again, your friend bears the burden of proving the provision applies.  

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4 hours ago, BV80 said:

Perhaps he was simply addressing the issues raised in the MTD and attached affidavit.  

Yes, he’s attempting to separate the provision from the Retail Installment Agreement, but that’s his job.   And again, your friend bears the burden of proving the provision applies.  

I can not find any case law regarding the incorporation by reference, is there another member here who may be able to research such case law for Ohio better than what i can. It would be appreciated.

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3 hours ago, Robby8900 said:

I can not find any case law regarding the incorporation by reference, is there another member here who may be able to research such case law for Ohio better than what i can. It would be appreciated.

Found this case http://www.supremecourt.ohio.gov/rod/docs/pdf/6/2017/2017-Ohio-5844.pdf

Check paragraph 14-16

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1 hour ago, Robby8900 said:

Check paragraph 14-16

You know I’m not an attorney.  

In my opinion, the paragraphs you referenced are that not specific.  They do not give us instruction that help us to determine the language necessary to incorporate one agreement into another.  

The most compelling statement I found from those paragraphs is “The master agreement that contains the arbitration provision is the agreement that began the parties’ relationship, and it is highly likely that the parties will need to reference the master agreement to at least some degree in the course of the dispute.”

But again, your friend.would have to show that the retail installment agreement is part of the purchase agreement (which may be considered to be the master agreement).  

Absent more specific language, PLEASE tell your friend to consult with a consumer attorney.  

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On 9/27/2019 at 9:55 PM, BV80 said:

You know I’m not an attorney.  

In my opinion, the paragraphs you referenced are that not specific.  They do not give us instruction that help us to determine the language necessary to incorporate one agreement into another.  

The most compelling statement I found from those paragraphs is “The master agreement that contains the arbitration provision is the agreement that began the parties’ relationship, and it is highly likely that the parties will need to reference the master agreement to at least some degree in the course of the dispute.”

But again, your friend.would have to show that the retail installment agreement is part of the purchase agreement (which may be considered to be the master agreement).  

Absent more specific language, PLEASE tell your friend to consult with a consumer attorney.  

Now the plaintiff, has filed for summary judgment.

 

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5 hours ago, fisthardcheese said:

File an answer, an opposition to summary judgement and an MTC immediately.

 

He filed a response to the motion for summary judgment arguing that the court lacks smj due to the arb clause, and that all of the plaintiff's claims arise out of or are related to the purchase finance or breach of the contract referable to arbitration.

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UPDATE: My friend won his case today. The judge granted his motion to compel and stay pending arbitration. The judge gave the plaintiff,till nov 20th to initiate arbitration. Remember, this is a case, where my friend failed to answer the complaint.

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1 hour ago, fisthardcheese said:

Well, he has almost won.  It is stayed for now.  He must file the arbitration without delay to finish this thing off now.

He used the capital One bank v. Rotman case, the judge told the attorney that  the plaintiff, needed to initiate arb gave deadline of Nov 20th.

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1 hour ago, Robby8900 said:

He used the capital One bank v. Rotman case, the judge told the attorney that  the plaintiff, needed to initiate arb gave deadline of Nov 20th.

Oh, in that case, if this were me I would send them a settlement offer for a mutual release and dismissal with prejudice and set that offer to expire on Nov 20.

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