Being Sued By Crown Asset Management, LLC in Ohio

[elansus]

1. Who is the named plaintiff in the suit? Crown Asset Management, LLC

2. What is the name of the law firm handling the suit? Levy & Associates, LLC

3. How much are you being sued for? $1558.73

4. Who is the original creditor?  Comenity Bank

5. How do you know you are being sued? Letter from the Court

6. How were you served? Mail

7. Was the service legal as required by your state? Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I had no correspondence with Levy, Crown Asset tried to call me and my wife a few times.

9. What state and county do you live in? Ohio, Fairfield

10. When is the last time you paid on this account? Aug, 2017

11. When did you open the account (looking to establish what card agreement may be applicable)? Unsure, I believe in 2010

12. What is the SOL on the debt? To find out: 6 Years

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online Suit served, motions filed. I myself filed a Motion to Dismiss on the off-chance they may just drop it and to otherwise, buy myself some more time.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). I did request this

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Summoned before the Magistrate for 9/19/19 about the Motion to Dismiss.

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Photocopy of Bill, Bill of Sale, Schedule 1 to Bill of Sale, Closing Statement on Bill of Sale, Affidavit of Sale of Account by Original Creditor with a Certificate of Conformity.

18.  How did you find out about this site? Google

18. Read these two links:

Copy of the Complaint:

Crown Asset Management, LLC
c/o Levy & Associates, LLC
4645 Executive Drive
Columbus, Ohio 43220

PLAINTIFF,

v.

Me

DEFENDANT.

1. Upon information and belief, Defendant(s) resides in Fairfield County, Ohio.  Plaintiff, is the assignee of Defendant's Comenity Capital Bank account, account#XXXXXXXXX ("Account").

2. Defendant owes Plaintiff the sum of One Thousand Five Hundred Fifty-Eight and 73/100 Dollars ($1,558.73) for money owed to Plaintiff via Defendant's use of the Account provided to Defendant.

3. Defendant breached the Account's agreement by failing to make payment on the account as required.

4. As a result of said breach, Defendant owes Plaintiff the sum of One Thousand Five Hundred Fifty-Eight and 73/100 Dollars ($1,558.73).  A Copy of statement is attached hereto, and incorporated herein, as Exhibit "A".

5. Plaintiff, or its agents, has made demand on Defendant, but Defendant has failed to comply with such demand.

6. Defendant(s) received benefit from said account.

7. Said Account was not conferred gratuitously, Defendant was expected to pay on said Account, and as a result Defendant(s) has been unjustly enriched, all in the sum of One Thousand Five Hundred Fifty-Eight and 73/100 Dollars ($1,558.73).

[elansus]

As stated above, I filed a Motion to Dismiss on the grounds that they did not include a DOLA to prove it was within the SOL, which they promptly filed a Memorandum in Opposition to the Defendant's Motion to Dismiss, including a DOLA. I've found the credit card agreement from reading other posts here and it is as follows:

I. Arbitration and jury trial waiver For Covered Borrowers under the Military Lending Act (MLA) The MLA prohibits us from requiring you to submit to arbitration as a condition of extending credit. For additional information see Section J below. A. Jury trial waiver TO THE EXTENT PERMITTED BY LAW, YOU AND WE WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF A LAWSUIT ARISING OUT OF OR RELATED TO THIS AGREEMENT. THIS JURY TRIAL WAIVER SHALL NOT AFFECT THE ARBITRATION PROVISION BELOW (INCLUDING THE JURY TRIAL WAIVER CONTAINED THEREIN). YOU AND WE EACH REPRESENT THAT THIS WAIVER IS GIVEN KNOWINGLY, WILLINGLY AND VOLUNTARILY. B. Notice and cure Prior to bringing a lawsuit or initiating an arbitration that asserts a claim arising out of or related to this Agreement (as further defined below, a “Claim”), the party asserting the Claim (the “Claimant”) shall give the other party (the “Defendant”) written notice of the Claim (a “Claim Notice”) and a reasonable opportunity, not less than 30 days, to resolve the Claim. Any Claim Notice to you shall be sent in writing to the address we have in our records (or any updated address you subsequently provide to us). Any Claim Notice to us shall be sent by mail to Comenity Bank, PO Box 182436, Columbus, Ohio 43218-2436 (or any updated address we subsequently provide). Any Claim Notice you send must provide your name, address and Account number. Any Claim Notice must explain the nature of the Claim and the relief that is demanded. You may only submit a Claim Notice on your own behalf and not on behalf of any other party. No third party, other than a lawyer you have personally retained, may submit a Claim Notice on your behalf. The Claimant must reasonably cooperate in providing any information about the Claim that the other party reasonably requests. C. Arbitration provision READ THIS ARBITRATION PROVISION CAREFULLY. IF YOU DO NOT REJECT THIS ARBITRATION PROVISION IN ACCORDANCE WITH PARAGRAPH C.1. BELOW, IT WILL BE PART OF THIS AGREEMENT AND WILL HAVE A SUBSTANTIAL IMPACT ON THE WAY YOU OR WE WILL RESOLVE ANY CLAIM WHICH YOU OR WE HAVE AGAINST EACH OTHER NOW OR IN THE FUTURE. 1. Your Right to Reject: If you don’t want this Arbitration Provision (and any prior arbitration agreement between you and us (“Prior Arbitration Agreement”)) to apply, you may reject it by mailing us a written rejection notice which gives the name of each Cardholder and contains a statement that you (both of you, if more than one) reject the Arbitration Provision of this Agreement. The rejection notice must be sent to us at Comenity Bank, PO Box 182422, Columbus, Ohio 43218-2422. A rejection notice is only effective if it is signed by you (all of you, if more than one) and if we receive it within thirty (30) calendar days after the date we first provide you with a credit card agreement or written notice providing you a right to reject this Arbitration Provision. Your rejection of this Arbitration Provision will not affect any other provision of this Agreement or your ability to obtain credit. 2. Parties Subject to Arbitration: Solely as used in this Arbitration Provision (and not elsewhere in this Agreement), the terms “we,” “us” and “our” mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the “Bank Parties”); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party. 3. Covered Claims: “Claim” means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account. “Claim” includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. “Claim” has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief). “Claim” does not include disputes about the validity, enforceability, coverage or scope of this Arbitration Provision or any part thereof (including, without limitation, the prohibition against class proceedings, private attorney general proceedings and/or multiple party proceedings described in Paragraph C.7 (the “Class Action Waiver”), the last sentence of Paragraph C.13 and/or this sentence); all such disputes are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. 4. Starting an Arbitration: 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. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration. 5. Choosing the Administrator: “Administrator” means the American Arbitration Association (“AAA”), 120 Broadway, 21st Floor, New York, NY 10271, www.adr.org; JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com; or any other company selected by mutual agreement of the parties. If both AAA and JAMS cannot or will not serve and the parties are unable to select an Administrator by mutual consent, the Administrator will be selected by a court. The arbitrator will be appointed by the Administrator in accordance with the rules of the Administrator. However, the arbitrator must be a retired or former judge or a lawyer with at least 10 years of experience. You get to select the Administrator if you give us written notice of your selection with your notice that you are electing to arbitrate any Claim or within 20 days after we give you notice that we are electing to arbitrate any Claim (or, if you dispute our right to require arbitration of the Claim, within 20 days after that dispute is finally resolved). If you do not select the Administrator on time, we may do it. Notwithstanding any language in this Arbitration Provision to the contrary, no arbitration may be administered, without the consent of all parties to the arbitration, by any Administrator that has in place a formal or informal policy that is inconsistent with the Class Action Waiver. 6. Court and Jury Trials Prohibited; Other Limitations on Legal Rights: 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. ALSO, YOUR ABILITY TO OBTAIN INFORMATION FROM US IS MORE LIMITED IN AN ARBITRATION THAN IN A LAWSUIT. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO NOT BE AVAILABLE IN ARBITRATION. 7. Prohibition Against Certain Proceedings: IF YOU OR WE ELECT TO ARBITRATE A CLAIM: (1) NEITHER YOU NOR WE MAY PARTICIPATE IN A CLASS ACTION IN COURT OR IN CLASS-WIDE ARBITRATION, EITHER AS A PLAINTIFF, DEFENDANT OR CLASS MEMBER; (2) NEITHER YOU NOR WE MAY ACT AS A PRIVATE ATTORNEY GENERAL IN COURT OR IN ARBITRATION; (3) CLAIMS BROUGHT BY OR AGAINST YOU MAY NOT BE JOINED OR CONSOLIDATED WITH CLAIMS BROUGHT BY OR AGAINST ANY OTHER PERSON; AND (4) THE ARBITRATOR SHALL HAVE NO POWER OR AUTHORITY TO CONDUCT A CLASS-WIDE ARBITRATION, PRIVATE ATTORNEY GENERAL ARBITRATION OR MULTIPLE-PARTY ARBITRATION. 8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to. 9. Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 (the “FAA”), and not by any state arbitration law. The arbitrator must apply applicable substantive law consistent with the FAA and applicable statutes of limitations and claims of privilege recognized at law. The arbitrator may award any remedy provided by the substantive law that would apply if the action were pending in court (including, without limitation, punitive damages, which shall be governed by the Constitutional standards employed by the courts). At the timely request of either party, the arbitrator must provide a brief written explanation of the basis for the award. 10. Right to Discovery: In addition to the parties’ rights to obtain discovery pursuant to the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope of discovery normally allowable under the arbitration rules of the Administrator. The arbitrator shall have discretion to grant or deny that request. 11. Arbitration Result and Right of Appeal: Judgment upon the arbitrator’s award may be entered by any court having jurisdiction. The arbitrator’s decision is final and binding, except for any right of appeal provided by the FAA. However, if the amount of the Claim exceeds $50,000 or involves a request for injunctive or declaratory relief that could foreseeably involve a cost or benefit to either party exceeding $50,000, any party can, within 30 days after the entry of the award by the arbitrator, appeal the award to a three-arbitrator panel administered by the Administrator. The panel shall reconsider anew any aspect of the initial award requested by the appealing party. The decision of the panel shall be by majority vote. Reference in this Arbitration Provision to “the arbitrator” shall mean the panel if an appeal of the arbitrator’s decision has been taken. The costs of such an appeal will be borne in accordance with Paragraph C.8. above. 12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision, on the one hand, and the applicable arbitration rules or the other provisions of this Agreement, on the other hand, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement. 13. Severability: If any portion of this Arbitration Provision, other than the Class Action Waiver, is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. If a determination is made that the Class Action Waiver is unenforceable, only this sentence of the Arbitration Agreement will remain in force and the remaining provisions shall be null and void, provided that the determination concerning the Class Action Waiver shall be subject to appeal. 14. Special Payment: If (1) you submit a Claim Notice in accordance with Paragraph B above on your own behalf (and not on behalf of any other party); (2) we refuse to provide you with the relief you request; and (3) an arbitrator subsequently determines that you were entitled to such relief (or greater relief), the arbitrator shall award you at least $5,100 (plus any fees and costs to which you are entitled).

[elansus]

Just looking for advice as to where I go from here. Should I file my Answer and also go for a MTC for Arbitration at this point and drop my Motion for Dismissal or let the MoD play out and then file my answer and my MTC for Arbitration? Thank you!

[BV80]

8 minutes ago, elansus said:

Just looking for advice as to where I go from here. Should I file my Answer and also go for a MTC for Arbitration at this point and drop my Motion for Dismissal or let the MoD play out and then file my answer and my MTC for Arbitration? Thank you!

The statute of limitations is an affirmative defense which must be raised and proven by the defendant.  Unless your rules require the plaintiff the plaintiff show in its complaint that the account is not time-barred, the plaintiff was not required to do so.

[elansus]

I’m not sure I follow. I understand that it could be used as an affirmative defense, but through other advice I found here (maybe another website) I used it instead to file a motion to dismiss to buy myself time and figure out my next steps and to maybe have them back off as this won’t be a default judgement case, which did not happen. 

 

Edit: also, I am the defendant. 

Edited August 29, 2019 by elansus
More info

[BV80]

43 minutes ago, elansus said:

I’m not sure I follow. I understand that it could be used as an affirmative defense, but through other advice I found here (maybe another website) I used it instead to file a motion to dismiss to buy myself time and figure out my next steps and to maybe have them back off as this won’t be a default judgement case, which did not happen. 

 

Edit: also, I am the defendant. 

A motion to dismiss in lieu of an answer is based upon the sufficiency of the complaint.  

 A complaint may be dismissed under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the complaint on its face conclusively indicates that the action is time-barred. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11.

Notice the above ruling shows that for a motion to dismiss based on the SOL to be granted, the complaint must show that the action is time-barred. If the complaint does not show it, then a motion to dismiss is improper.  

Yes, some will recommend a MTD in lieu of an answer in order to buy time.  Except under certain circumstances, I’m not a fan of that advice.

[Brotherskeeper]

@elansus The 2 threads of MikeB35 and @nobk4me 's knowledge of Ohio may be useful for you to read, if you haven't:

 

[elansus]

1 hour ago, BV80 said:

A motion to dismiss in lieu of an answer is based upon the sufficiency of the complaint.  

 A complaint may be dismissed under Civ.R. 12(B)(6) for failing to comply with the applicable statute of limitations when the complaint on its face conclusively indicates that the action is time-barred. Doe v. Archdiocese of Cincinnati, 109 Ohio St.3d 491, 2006-Ohio-2625, 849 N.E.2d 268, ¶ 11.

Notice the above ruling shows that for a motion to dismiss based on the SOL to be granted, the complaint must show that the action is time-barred. If the complaint does not show it, then a motion to dismiss is improper.  

Yes, some will recommend a MTD in lieu of an answer in order to buy time.  Except under certain circumstances, I’m not a fan of that advice.

@BV80 thank you for the advice. I am now debating if I should file to withdraw my motion to dismiss and file my answer based on @Brotherskeeper mentioned. Thank you for the second case, I was already reading through the @MikeB35 case trying to determine what he did. I will read through them both completely tomorrow. Would you have a suggestion if I should ride my very flimsy (definitely won’t hold) MOD or should withdraw it and file an answer and a MTC? Thank you for taking the time!

[elansus]

I started to read through the cardholder agreement, and the only thing I could find that references the validity or inability to use arbitration is section 4.)

19 hours ago, elansus said:

4. Starting an Arbitration: 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. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.

To me, this states that arbitration can be requested at any time and there is no standing for them to block my request for arbitration through engaging in litigation (which from what I've read here has been the primary way JDB's have attempted to block this.

The JDB filed a Plaintiff's Memorandum in Opposition to the Defendant's Motion to Dismiss and stated that "Pled a Prima facie case on an assigned outstanding credit card debt and, thus, should not be subject to dismissal" citing Ogle v. Ohio Power Co. (2008) and Ohio Supreme Court in Fletcher v. Univ. Hosps. of Cleveland (2008) which states "In short, a party can still plead a prima facie case in such circumstances even without attaching the account or written agreement to the complaint. Thus, the complaint will survive a motion to dismiss for failure to state a claim."

These two facts combined lead me to feel I have two options:

1.) Withdraw my Motion to Dismiss and file my Answer and MTC Arb. ASAP.

2.) Go to the scheduled Non-Oral Hearing, let the Motion to Dismiss play out which it will be denied, and then hope I will be able to file my Answer and MTC Arb. that same day.

I've begun my draft for my Answer and my MTC Arb, and also have a few copies of the latest agreement from the cardholder, since they also reference:

19 hours ago, elansus said:

12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law. In the event of a conflict or inconsistency between this Arbitration Provision, on the one hand, and the applicable arbitration rules or the other provisions of this Agreement, on the other hand, this Arbitration Provision shall govern. This Arbitration Provision replaces any Prior Arbitration Agreement. 13. Severability: If any portion of this Arbitration Provision, other than the Class Action Waiver, is deemed invalid or unenforceable, the remaining portions shall nevertheless remain in force. If a determination is made that the Class Action Waiver is unenforceable, only this sentence of the Arbitration Agreement will remain in force and the remaining provisions shall be null and void, provided that the determination concerning the Class Action Waiver shall be subject to appeal.

This line, to me states that this newest Arbitration Agreement replaces all old ones and therefore is the most up-to-date and usable.

Thank you for taking the time to read this and for any insight into my thought process being right, and especially if any of it is wrong.

[elansus]

So, called the court and the clerk informed me that I could file another motion, an affidavit and my answer all before the non-oral hearing on the 19th. Here is what I've come up with so far:

IN THE  COUNTY MUNICIPAL COURT

 

CROWN ASSET MANAGEMENT, LLC.,                         Case No.

            Plaintiff,

Vs.

           

            Defendant

DEFENDANT'S ANSWER TO THE PLAINTIFF'S COMPLAINT

 

Comes now the Defendant, , appearing Pro Se and submits the following answer to the Plaintiff's Complaint.

1.      Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's claim.

2.      Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides' litigation rights in court.

3.      Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's paragraphs (2-7) and must respectfully DENY Plaintiff's remaining allegations.

 

AFFIRMATIVE DEFENSES

1.      Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter. Defendant states that there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. Defendant states that he has provided the most recent Credit Card Agreement in question. This agreement clearly states the arbitration clause biding both parties. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

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

 

            Respectfully Submitted,

                                                                                                                                                           

 

And for my MTC Arbitration:

IN THE  COUNTY MUNICIPAL COURT

 

CROWN ASSET MANAGEMENT, LLC.,                         Case No.

            Plaintiff,

Vs.

           

            Defendant

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND FOR A STAY PENDING ARBITRATION

 

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

1.      That on or about Jul 19, 2019, Plaintiff filed its Complaint against Defendant.

2.      Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit 1, attached).

3.      Both parties are bound by the Credit Card Agreement, which contains an Arbitration Claus that states, among other things:

4. Starting an Arbitration: 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. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.

 

LAW AND ARGUMENT

 

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. (Emphasis added.)

 

Ohio Revised Code Section 2711.01(A) states that "A provision in any written contract . . . to settle by arbitration a controversy that subsequently arises out of the contract, or out of the refusal to perform the whole or any part of the contract . . . shall be valid, irrevocable, and enforceable, except upon grounds that exist at law or equity for the revocation of any contract."

 

Ohio public policy favors the enforcement of private arbtitration
agreements. Kelm v. Kelm (1993), 68 Ohio St.3d 26, 623 N.E.2d 39.
See also, N. Ohio Sewer Contrs., Inc. v. Bradley Dev. Co. (2005), 159
Ohio App.3d 794, 2005-Ohio-1014, 825 N.E.2d 650; Junkins v. Spinnaker
Bay Condominium Assn., Ottawa App. No. OT-01-007, 2002-Ohio-872. Any uncertainty that exists with regard to the applicability of an arbitration
clause should be resolved in favor of coverage. Id. An arbitration clause
should not be denied effect unless it can be determined to a high degree of
certainty that the clause does not cover the asserted dispute. Owens
Flooring Co. v. Hummel Constr. Co. (2000), 140 Ohio App.3d 825, 749 N.E.2d 782.
See also Willis v. Linnen, Summit App. No. 20775, 2002-Ohio-2000. The law favors
and encourages arbitration. Brennan v. Brennan (1955), 164 Ohio St. 29, 128
N.E.2d
 

CONCLUSION

 

The Defendant asks that this case be stayed pending arbitration. Ohio
Revised Code Section 2711.02(B) states: "If any action is brought upon
any issue referable to arbitration under an agreement in writing for
arbitration, the court in which the action is pending, upon being satisfied
that the issue involved in the action is referable to arbitration under an
agreement in writing for arbitration, shall on application of one of the
parties stay the trial of the action until the arbitration of the issue has been
had in accordance with the agreement . . ." (Emphasis added.)

                                                                              Respectfully submitted,

 

                                                                              By:_________________________

                                                                                            

Certificate of Service

 

I certify that a copy of this document was mailed to Levy & Associates by regular U.S. Mail to 464 Executive Drive, Columbus, Ohio, 43220 on 9/3/19.

                                                                                                _________________

                                                                                               

                                                                                               

                                                                                               

 

 

 

IN THE  COUNTY MUNICIPAL COURT

 

CROWN ASSET MANAGEMENT, LLC.,                         Case No.

           

Plaintiff,

Vs.

           

            Defendant

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND FOR A STAY PENDING ARBITRATION

      WHEREFORE, in consideration of the Defendant's Motion to Compel Private/Contractual Arbitration and to Stay Proceedings Pending Arbitration Respond to Plaintiff's Complain, it is hereby ORDERED and ADJUDGED that Defendant's motion shall be GRANTED.

IT IS SO ORDERED.

                                                                                                                                         

                                                                                          Judge

 

Respectfully submitted,

                                         

 

And now just for writing my affidavit and to submit the cardholder agreement as an exhibit. If anyone has anything to add/change or ideas or if I should also file a motion to withdraw my motion to dismiss I would love to hear it. Thanks everything, this has helped me immensely and I am so grateful for your time

[MaryD_OH]

This my template that I created for my own case.

AFFIDAVIT OF AUTHENTICATION

I, XXXXXXXX, pro se litigant of XXXXXXX Ohio, In XXXXXXXXXXXXX County MAKE OATH AND CERTIFY THAT

1.) On XXXXXXXXXX, the Plaintiffs attorney filed their complaint, this complaint did not include a copy of this Credit Card account agreement.

2.) Defendant obtained a copy of the applicable Card Account Agreement from the Consumer Financial Protection Bureau (“CFPB”) database at http://www.consumerfinancce.gov/credit-cards/agreements/. Under Section 204 of the Credit Card Act of 2009, Comenity Capital Bank is required to provide copies of their written agreements to the CFPB to be easily accessible and retrievable by the public. A true and correct copy of the applicable Card Account Agreement is attached to this Affidavit.  

I certify that the information above is true to the best of my knowledge.

_________________________________________

YOUR SIGNATURE

Sworn to before me and signed in my presence this _____ day of _______________, 20_____.

_________________________________________

Deputy Clerk Notary Public

My Commission Expires:____________________

[MaryD_OH]

When I copied and pasted the template, it formatted weird in this forum.  So you'll need to format it correctly if you decide to use it.  

[Robby8900]

12 minutes ago, MaryD_OH said:

This my template that I created for my own case.

AFFIDAVIT OF AUTHENTICATION

I, XXXXXXXX, pro se litigant of XXXXXXX Ohio, In XXXXXXXXXXXXX County MAKE OATH AND CERTIFY THAT

1.) On XXXXXXXXXX, the Plaintiffs attorney filed their complaint, this complaint did not include a copy of this Credit Card account agreement.

2.) Defendant obtained a copy of the applicable Card Account Agreement from the Consumer Financial Protection Bureau (“CFPB”) database at http://www.consumerfinancce.gov/credit-cards/agreements/. Under Section 204 of the Credit Card Act of 2009, Comenity Capital Bank is required to provide copies of their written agreements to the CFPB to be easily accessible and retrievable by the public. A true and correct copy of the applicable Card Account Agreement is attached to this Affidavit.  

I certify that the information above is true to the best of my knowledge.

_________________________________________

YOUR SIGNATURE

Sworn to before me and signed in my presence this _____ day of _______________, 20_____.

_________________________________________

Deputy Clerk Notary Public

My Commission Expires:____________________

Oh, i like the credit card act section 204, i did not know about that. It surly supports your assertion.

[BV80]

1 hour ago, Robby8900 said:

Oh, i like the credit card act section 204, i did not know about that. It surly supports your assertion.

That information has been on this site for several years.  Perhaps we should make it more noticeable and readily available.

https://www.creditinfocenter.com/community/topic/328006-being-sued-by-portfolio-recovery/?do=findComment&comment=1346928

 

[MaryD_OH]

On ‎8‎/‎31‎/‎2019 at 9:37 AM, BV80 said:

That information has been on this site for several years.  Perhaps we should make it more noticeable and readily available.

https://www.creditinfocenter.com/community/topic/328006-being-sued-by-portfolio-recovery/?do=findComment&comment=1346928

 

Yeah, I found that info on this site.  Before I filed my Answer and MTC w/ supporting documents.  I did my homework like you'll all suggested.  My case has been on hold for months now which is the reason why I haven't updated anything on my own thread.  

[MikeB35]

I would say draw up your answer with subject matter jurisdiction. From my experience they will fight it,  mainly its a young guy that got put into the position of dealing with these cases. They will draw from a pool of documents they have (read Everything as you just might find information they are presenting refers to some completely different case)

You are in for a battle my friend, it is taxing in the beginning because you have to research, file paperwork, etc etc. But keep a cool head and listen to the people giving advice. 90% of the people on here are battle tested and have gone the course.

[elansus]

A few updates:

The magistrate turned down my motion to dismiss, expected.

I filed my answer and my Motion to Compel Arbitration and they have a date set for today.

JDB lawyer filed a memorandum in opposition to defendant's motion to compel arbitration and motion to vacate the oral hearing for tomorrow, which the magistrate denied.

JDB then sent a notice of service of plaintiff's first set of interrogatories, request for production of documents and request for admissions, which seem to just be items that I already laid out in my answer to their case filing.

Any advice for going in tomorrow for dealing with the arbitration clause. The arbitration clause is quite specific on if arbitration is invoked, they have to follow it. It is more on how to deal with them trying to get me to admit to the debt.

Thanks everyone, I will keep you posted if I don't hear until after.

[elansus]

@Brotherskeeper @MikeB35

So, I'm unsure if my last court date went well. The JDB lawyer filed a motion in effect saying that the magistrate should not grant my Motion to Compel Arbitration because I have created a paradoxical situation by saying that I do not remember the debt and therefore they should not be held accountable to the credit card agreement. (I can post their actual motion if that would help!)

The magistrate set a trial for next year, while also granting me until next Friday, November 22nd to submit a Brief on why my MTC Arbitration should be granted, which he will rule on on November 29th. I'm unsure how to proceed. I want to submit a brief pretty much explaining that although I don't necessarily remember the debt, since they are the debt owner, and are suing me for said debt, both parties should still be bound by the credit card agreement because if the magistrate believes that I am the correct debtee(?) even if I don't necessarily remember the debt then we would be bound by said credit card agreement. Any insight or help would be much appreciated. I thought it went well up until he granted that extra week and a half to submit a brief on why it should be granted.

Thanks so much for your time and help. I strongly feel that if I get to arbitration I have a good case since I have a way to show that the the original debt owner calling someones home whom I am not technically related to on multiple occasions.

[Brotherskeeper]

On 11/16/2019 at 1:01 PM, elansus said:

(I can post their actual motion if that would help!)

Please do, with redactions for identifying info. To be clear, you asserted in your Answer that you don't remember the debt but did not DENY ever having the debt. 

 

On 11/16/2019 at 1:01 PM, elansus said:

therefore they should not be held accountable to the credit card agreement.

If they are not bound by the credit card agreement, where do their rights to enforce the terms come from?

 

On 8/29/2019 at 3:16 PM, elansus said:

3. Defendant breached the Account's agreement by failing to make payment on the account as required.

(IANAL) The Complaint alleges that you breached the "Account agreement."

 

On 8/29/2019 at 3:16 PM, elansus said:

1. Upon information and belief, Defendant(s) resides in Fairfield County, Ohio.  Plaintiff, is the assignee of Defendant's Comenity Capital Bank account, account#XXXXXXXXX ("Account").

Rights of assignment of the original account would be spelled out in the Account Agreement. 

[elansus]

@BrotherskeeperHere is their actual motion with redactions. You can see what I had included as my answer above which I denied through an inability to remember the debt.

Opposition to Post.pdf

[elansus]

There was one other thing I found odd by the Magistrate and that was that he was asked if I had already contacted the Arbitration company, JAMS or AAA, and if not why I had not contacted them yet. I informed him that I would need a court order to take them before contacting them. Is contacting the Arbitration first normal? Because my understanding from other threads here (Mainly @MikeB35's threads) has been that contacting them comes after getting the MTC Arbitration.

[Brotherskeeper]

On 8/29/2019 at 3:22 PM, elansus said:

However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

 

The Complaint at paragraph 1 states:

On 8/29/2019 at 3:16 PM, elansus said:

1. Upon information and belief, Defendant(s) resides in Fairfield County, Ohio.  Plaintiff, is the assignee of Defendant's Comenity Capital Bank account, account#XXXXXXXXX ("Account").

Your Answer for paragraph 1's allegations is:

On 8/30/2019 at 1:25 PM, elansus said:

1.      Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's claim.

Then you stated:

On 8/30/2019 at 1:25 PM, elansus said:

2.      Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides' litigation rights in court.

3.      Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's paragraphs (2-7) and must respectfully DENY Plaintiff's remaining allegations.

(IANAL) As I read your Answer, you pleaded that you were without information or knowledge to form an opinion as to the truth of Plaintiff's Complaint's paragraphs 1, 2-7. In your Answer's paragraph 3, you DENY Plaintiff's "remaining allegations" which you never specify. 

[elansus]

Right, from advice from others that was the wording provided on how they had responded to complaints filed against them. I also left a note saying that I could amend/add later. Was there a different wording on my response that would do better or should I just do a brief about what you pointed out above, that it is for an arbitrator to decide? However, they will just come back to the "paradoxical" and say that I am not bound by the credit card agreement, but then that would mean I am not required to pay the debt? It seems that they are the ones who have created a paradoxical argument unless I am thinking myself around in circles.

[Brotherskeeper]

57 minutes ago, elansus said:

Was there a different wording on my response that would do better

In my state, each numbered paragraph of an Answer corresponds with the numbered paragraph of the Complaint, meaning you answer (plead) each allegation of a complaint's numbered paragraph in a paragraph with the same number. (Some states allow a general denial of all allegations.) Your Answer doesn't exactly do this, but there should be no confusion: 

"2.      Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides' litigation rights in court."

Your Affirmative Defense 1 asserts: 

On 8/30/2019 at 1:25 PM, elansus said:

AFFIRMATIVE DEFENSES

1.      Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter. Defendant states that there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. Defendant states that he has provided the most recent Credit Card Agreement in question. This agreement clearly states the arbitration clause biding both parties. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

Your motion states:

On 8/30/2019 at 1:25 PM, elansus said:

2.      Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit 1, attached).

3.      Both parties are bound by the Credit Card Agreement, which contains an Arbitration Claus that states, among other things:

4. Starting an Arbitration: 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. We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration.

You did not post a copy of the affidavit that you attached the credit card agreement to as an exhibit. What did your affidavit state? 

[Brotherskeeper]

The Plaintiff's Motion Opposition Response argues:

"Importantly, the Defendant denies (1) entering into a credit agreement with Plaintiff, (2) breaching the terms of the credit card agreement, and (3) the balance sought. See Plaintiff's Complaint filed September 16,2019, at Para. No.: 3. The Defendant cannot assert a right under a contract in which he claims not to be a party. Likewise, any reliance by the Defendant on the terms and conditions governing the account is misplaced and does not apply to the Defendant as he alleges he did not enter into a credit agreement with Plaintiff."

Plaintiff is Crown Asset Management, LLC. The original creditor is Comenity Bank. If you "denied" anything it was that, "Plaintiff, is the assignee of Defendant's Comenity Capital Bank account, account#XXXXXXXXX ("Account")." However, you actually pleaded that you are, "without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's claim."

 

Plaintiff's own Statement of Facts in its Opposition Response to your MTC asserts: 

"This action is based on a credit card debt incurred by the Defendant, ("Defendant") with the original creditor, Comenity Bank, who later sold and assigned all rights to Crown Asset Management, LLC, ("Plaintiff')."

 

The Comenity Agreement states: 

"3. Covered Claims: “Claim” means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account."

"12. Rules of Interpretation: This Arbitration Provision shall survive the repayment of all amounts owed under this Agreement, the closing of the Account, any legal proceeding and any bankruptcy to the extent consistent with applicable bankruptcy law."