arbitration or chapter 7

Sued in Michigan (Cavalry, Portfolio and Midland)

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I just hit the trifecta of lawsuits as I am being sued by Cavalry (served 8/19), Portfolio (served 8/26) and Midland (yet to be served). ..if only they were horses in the Derby! I have read and re-read both the BitsyMI and Want2beclear topic posts and appreciate the opinions and advice from all the members on this site, an incredible source of information.  I do have Chapter 7 bankruptcy as an option but I have decided to pursue the arbitration routes first.  The amounts I am being sued for are much higher than BitsyMI and Want2beclear so I assume if arbitration is awarded that the JDB will follow the cases through.  The arbitration clause doesn't seem as consumer friendly as in the other cases I have read?

Below is the first lawsuit which has been brought by Cavalry and I was served on 8/19 with 21 days to answer so must answer by September 9th.

 

1. Who is the named plaintiff in the suit? Cavalry

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weber & Olcese (same firm as BitsyMI and Want2beclear)

3. How much are you being sued for? $9200

4. Who is the original creditor? (if not the Plaintiff) CitiBank

5. How do you know you are being sued? (You were served, right?) Served 8/19

6. How were you served? (Mail, In person, Notice on door) in person

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? None

9. What state and county do you live in? Oakland County, Michigan

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 3/2018.

11. When did you open the account (looking to establish what card agreement may be applicable)? 4/2014.

12. What is the SOL on the debt? 6 years.

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). They served me have 21 days to answer

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'). No

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? See attached below

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. – Statements, cardholder agreement, JDB Bill of Sale and Assignment,

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

 My arbitration agreement is below, wording is different than BitsyMI and Want2beclear, also no JAMS option only AAA

 I am preparing my answer now and will post when finished. 

 Thank you in advance for reading this post and your thoughts on the arbitration wording.

complaint.pdf Breach of contract.pdf arb 1.pdf arb 2.pdf

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Maybe they will follow you into arbitration, maybe they won’t.  

From what little I can tell, I am not sure if it would be one loss or two losses or 3 losses that would send you into BK.  

First, consider Midland.  If you have some compelling reason why you can’t pay, such as severe financial hardship or all your income is exempt, their policy is to drop the case.   I have no idea if you qualify or not.  Not enough information. 

Second, don’t assume the JDBs will all follow into arbitration because the amount is large.  I have had OCs walk away from arbitration with some hefty amounts. Or other times they didn’t.  It depends. You won’t know in advance.  

It looks like you have your initial strategies already.  File an MTC in all the cases.  See if they follow you into arbitration.  In the meantime, you should check to see if you qualify for Midland’s financial hardship program.  

It also looks like you have your end game program: BK 7.  

You should figure out how much you can spend without having to go the BK route.  That way if one or more JDBs follow you into arbitration, you  have a plan B of offering that amount of money as a settlement, with BK if they refuse.  If that amount is $0 or a small amount, you would have to go BK if you lose arbitration.  

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@BackFromTheDebt Thank you for the information regarding Midland...I had no  idea that may be an option with that lawsuit.

I have included below my answer but still need to put together the MTCA and notice of arbitration election.

I have put together my answer by looking at both Want2beclear and BitsyMI posts as they all seem similar but my head is spinning from going back and forth to the various documents and comparing...I don't expect my first draft to be perfect but any suggestions would be appreciated.

Answer to post.docx

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1 hour ago, arbitration or chapter 7 said:

@BackFromTheDebt Thank you for the information regarding Midland...I had no  idea that may be an option with that lawsuit.

I have included below my answer but still need to put together the MTCA and notice of arbitration election.

I have put together my answer by looking at both Want2beclear and BitsyMI posts as they all seem similar but my head is spinning from going back and forth to the various documents and comparing...I don't expect my first draft to be perfect but any suggestions would be appreciated.

Answer to post.docx 41.74 kB · 1 download

Doesn’t look bad.  As for the affirmative defense, i can’t tell you if that is done correctly.  You may need to make your defense lack of jurisdiction.  It’s been a long time for me.  

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In my Notice of Arbitration Election that I send to the Plantiff's attorney do I just include the following paragraph from the Card Agreement Arbitration Section?

"Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgement entered.Neither you nor we waive the right to arbitrate by filing or servicing a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration,  a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to AAA."

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18 hours ago, arbitration or chapter 7 said:

@BackFromTheDebt Thank you for the information regarding Midland...I had no  idea that may be an option with that lawsuit.

I have included below my answer but still need to put together the MTCA and notice of arbitration election.

I have put together my answer by looking at both Want2beclear and BitsyMI posts as they all seem similar but my head is spinning from going back and forth to the various documents and comparing...I don't expect my first draft to be perfect but any suggestions would be appreciated.

Answer to post.docx 41.74 kB · 2 downloads

IANAL. This looks good. I would suggest you not underline and bolden "A true copy of the arbitration demand notice sent to Plaintiff is attached as Defendant's Exhibit A. " There's no need for the emphasis.

 

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34 minutes ago, arbitration or chapter 7 said:

In my Notice of Arbitration Election that I send to the Plantiff's attorney do I just include the following paragraph from the Card Agreement Arbitration Section?

"Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgement entered.Neither you nor we waive the right to arbitrate by filing or servicing a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration,  a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to AAA."

I don’t know that it’s necessary because the attorney can read the arbitration provision.  But it certainly doesn’t hurt to include it.

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38 minutes ago, arbitration or chapter 7 said:

In my Notice of Arbitration Election that I send to the Plantiff's attorney do I just include the following paragraph from the Card Agreement Arbitration Section?

"Arbitration may be requested at any time, even when there is a pending lawsuit, unless a trial has begun or a final judgement entered.Neither you nor we waive the right to arbitrate by filing or servicing a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration,  a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to AAA."

You don't have to do anything the contract's arb provision doesn't require you to do. However, it doesn't hurt you in anyway that I can see to include this language. In fact, it alerts the attorney to the contract's allowance of requesting arb after a suit is filed. It becomes evidence you'll submit to the court that your judge will read. This stresses the contract's arb provision allows you to elect arb now and/or request the judge compel them to do so.

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2 hours ago, arbitration or chapter 7 said:
 

Thank you @Brotherskeeper.  I am attaching the rough draft notice of arbitration, I feel like the more legalese the better so in your opinion should I add more of the arbitration wording to this notice?

Notice of Arbitration Election to post.docx 13.53 kB · 1 download

In BitsyM's case, I believe she included a copy of the Proposed Order for her motion to compel arbitration along with this arb election notice. Her notice had a sentence at the bottom about the Proposed Order being included for their convenience, or something to that effect. The signed receipt of the elcetion notice started the 7-day clock for the rejection/acceptance of the Proposed Order, according to the Michigan Court Rules. After 7 days with no response, the order is deemed rejected. When you do the motion to compel, you're required to include an affidavit with a copy of the Proposed Order attesting that you first sought Plaintiff's concurrence before filing the motion, which was rejected. Check Bitsy's thread for this info. 

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38 minutes ago, arbitration or chapter 7 said:
 

@Brotherskeeperthank you I will review her posts again.  Want2beclear included a cover sheet marked Exhibit A in his notice of arbitration, in your opinion should I also include that?

 

All of your court exhibits need to be identified as "A," "B," "C," etc. and marked as such. You can prepare a cover sheet with Exhibit A typed in a large font size in bold, as Want2bclear did, or you can handwrite "Exhibit A" in the upper right or lower right corner. I believe this is covered in Want2bclear's thread. It isn't necessary to include the Exhibit A cover sheet or marking when mailing the notice to Plaintiff because this notice only becomes an exhibit of yours when you submit it to the court.  If you include a copy of this arb notice with your Answer as an exhibit to an affirmative defense, then it becomes a part of your pleading. Plaintiff will be served a copy of your Answer, including any exhibits, by you. You will certify that you sent a copy of your Answer to the Plaintiff when you file your Answer with the court. I hope this answers your question.

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@Brotherskeeperthat does answer the question, thank you. 

Could you take a look at the MTCA below?  I wasn't sure if I should add a section with the  Survival and Severability of Terms  legalese when referencing the Agreement arbitration section.  The Survival terms outline that the arbitration agreement survives "any sale of your Account, or amounts owed on your Account, to another person or entity."

MTCA final.docx

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1 hour ago, arbitration or chapter 7 said:
 

@Brotherskeeperthat does answer the question, thank you. 

Could you take a look at the MTCA below?  I wasn't sure if I should add a section with the  Survival and Severability of Terms  legalese when referencing the Agreement arbitration section.  The Survival terms outline that the arbitration agreement survives "any sale of your Account, or amounts owed on your Account, to another person or entity."

MTCA final.docx 36.41 kB · 0 downloads

Please reread @Want2beclear 's thread. You're going to have to submit an affidavit that attaches the rejected Proposed Order with this MTC. Also, a notice of the motion hearing date and time needs to be included.

Some of the corrections/suggestions I made to Want2beclear's motion haven't made their way into your motion draft. (Caveat: I am not a lawyer.)

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Thank you @BrotherskeeperI think I may be getting confused by jumping between BitsyMI and Want2beclear threads, I need to do a better job separating the two . 

I was going to follow what BitsyMI did in her case so the above MTCA is going to be included as a courtesy/convenience for the Plaintiff when I send the Notice of Arbitration so it has not yet been rejected and not an official Motion filed with the Court.   In that case I would not have to do the affidavit until I officially file the MTC  with the Court?

I believe she included a copy of the Proposed Order for her motion to compel arbitration along with this arb election notice. Her notice had a sentence at the bottom about the Proposed Order being included for their convenience, or something to that effect. The signed receipt of the elcetion notice started the 7-day clock for the rejection/acceptance of the Proposed Order, according to the Michigan Court Rules. After 7 days with no response, the order is deemed rejected. When you do the motion to compel, you're required to include an affidavit with a copy of the Proposed Order attesting that you first sought Plaintiff's concurrence before filing the motion, which was rejected. Check Bitsy's thread for this info. 

 I think I need to take a breath and keep it simple, I will file the below docs on Monday and then file the MTC with affidavit and  hearing date and time when the 7 day clock expires.  Any suggestions on the below docs are appreciated.  Thank you so much again for your time and posts.

Answer and Affirmative defense.docx Proposed Order.docx Notice of Arbitration Election final.docx

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1 hour ago, arbitration or chapter 7 said:

Thank you @BrotherskeeperI think I may be getting confused by jumping between BitsyMI and Want2beclear threads, I need to do a better job separating the two 

First, you need to understand what the rules require you to do. Both of these threads have valuable information to help you understand the what and why and how. Once you understand what you need to do and why, you can distinguish the specific facts and details of your case and modify your documents to include your specific facts. The basic template of the motion to compel is the framework you will modify to include your agreement's specific language and terms. The FAA, US Supreme Court cases and the Michigan cases are the authority, and the Michigan Court Rules cited provide the grounds to bring the motion. 

 

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@arbitration or chapter 7 If you are going to send Plaintiff the copy of the Proposed Order along with your Notice of Arbitration Election, you should include this at the bottom of the Notice before your signature, as Bitsy did:

"Enclosed is a Proposed Order for your consideration."

Any enclosure in a letter like this should be noted in the body of the letter. Remember, once they receive this Proposed Order and do not reply within 7 days, you can deem it rejected. Court rules on motions, like a MTCA, ask for you to first seek concurrence from the opposing party before filing the motion. It saves the court time if the other side agrees to stipulate and avoid using court resources. Your judge may actually require you to do this in his/her own court rules before scheduling a motion.

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@BrotherskeeperI have prepared my MTCA to file on Wednesday, Sept 18 assuming I do not hear back from Plaintiff’s attorney.

I have the following items ready to submit:

 

  1. MTCA (copy is attached) – concerned about the language I used to describe the “Card Agreement” in paragraph 1 and 2
  2. Affidavit (copy is attached)
  3. Notice of Hearing (copy attached)

 

Attached to the Affidavit will be copies of the Proposed Order, Notice of Arbitration Election and a copy of the CMRRR dated September 11, 2019 that I sent to Plaintiff’s attorney labeled as Exhibit A.  I will have this Affidavit notarized before submitting to court

 

I will fill out the Notice of Hearing once I get that information from the Court clerk and mail a copy to the Plaintiff’s attorney.

 

I will also have a copy of everything above in case a “Judge’s copy” is needed

 

I am using your very thorough and appreciated description from Want2beclear’s case:

 

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. 

MTCA final to post.docx AFFIDAVIT cavalry final.docx notice of hearing.pdf

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@arbitration or chapter 7 I'm reading your docs bit by bit. I'll comment as I have the time.

(IANAL!) On the Notice of Hearing, I would use the actual title of the motion on "Motion Title" line. Defendant's Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, To Stay Proceedings Pending Arbitration. I would put  "See the attached Motion to Compel Arbitration, Affidavit and Exhibit A." in the "Motion" box. 

You've titled your Motion as:

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND MOTION TO DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

 

Because Michigan rules have a motion to compel arb treated as a motion for summary disposition, you are not also motioning to dismiss. (IANAL) I would strike "Motion to Dismiss" and title this motion: 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

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Again, I would change the title on your Motion to:

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

 

1.)   You have an error in the correct case citation for AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011) in your para. #6. I've corrected it in the quote below. I don't think the word "Ruling" needs to be there.  Only the parties' names in the cite should be italicized, but not underlined. 

6.    The Supreme Court Ruling emphasized in its decision in AT&T Mobility LLC 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.

"We have described this provision as reflecting both a 'liberal federal policy favoring arbitration,' Moses H. Cone, supra, at 24, 103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and enforce them according to their terms. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).”

2.) In the paragraph below from AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011), the words  Volt, Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., and ld should be in italics as shown.

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

 

 

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@arbitration or chapter 7 I believe you've left off this important paragraph from your MTCA. It should be be included as Paragraph #8, with the current Paragraph #8 becoming Paragraph #9. 

8.  The attorney for Plaintiff was contacted for concurrence with the relief sought in this Motion. A copy of the Proposed Order that accompanies this Motion was delivered by USPS Certified Mail Return Receipt Requested on September 9, 2019, and signed for on September 11, 2019. (Affidavit of "arbitration or chapter 7", Exhibit A.) Defendant received no response from Plaintiff prior to the filing of this Motion. 

 

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@Brotherskeeperthank you I did have #8 correct in my non-private version.

I did notice after fixing the italic errors that in #7 I was missing pages 10-11) at the end of the paragraph.  A question about that, I have it as 

(Pl.'s Ex., pp 10-11), in your opinion is the abbreviation   of Plaintiff used correctly there?

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