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JDB (Midland) wouldn't Settle, So I elected Arbitration- Texas **UPDATE** 1YR & 3MONTHS LATER ON LAST PAGE

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@WhoCares1000 & @BV80 Does this look like an adequate ANSWER that I can file tomorrow? 

 

Case Number: XXXXXXX

 

Midland Funding LLC,

Justice Court (JP)

Plaintiff

XXXXX, Texas

v.

 XXXXX

XXXXX

SEEUINCOURT,

 

Defendant

 

Defendant's Answer

  1. Party Information

Defendant

Plaintiff

SEEUINCOURT

Midland Funding LLC,

XXXX

XXXXX

XXXXXX

XXXXXX

Phone: XXXXX

 

Email: XXXXX

Plaintiff Attorney

 

SXXXXXX.

 

XXXXXX

 

 

XXXXX, Texas 7XXXX

2. Answer

 General Denial:

Claim 1: Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the plaintiff's allegations.

Claim 2: Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the plaintiff's allegations.

3. Affirmative Defenses

·         Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement for Plaintiffs Claim 1.

  

Respectfully submitted,

 Defendant's Signature: __________________________ Date: September 27, 2019

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@WhoCares1000 would this be a good MTC to file tomorrow? I added my exact arbitration from my credit agreement to this. I left the Federal and Supreme Court mumbo jumbo on this from the template I got off this forum... should I take that out or keep it? Anything I should add? Also, do I print out the JAMS forms and attach them? Thanks for your help! YOU THE BEST! lol 😁

 

 

Case Number: XXXXX

 

Midland Funding LLC,

Justice Court (JP)

Plaintiff

XXXXX, Texas

v.

 XXXXXXX

XXXX Tx 7XXX

SEEUINCOURT

 

Defendant

 

MOTION TO COMPEL OR STAY ARBITRATION

  1. Party Information

Defendant

Plaintiff

XXXXX

Midland Funding LLC,

1XXXXXt

XXXXXX

XXXXX

XXXX, Texas XXXX

Phone: XXX

 

Email: XXXX

Plaintiff Attorney

 

SXXXXXXX.

 

XXXXXX

 

XXXXXXX

 

CXXXX, Texas XXXX

 

NOW COMES the Defendant, pro se, for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

I

That on or about September 10, 2019, Plaintiff filed its Complaint against Defendant.

II

Defendant sent a letter via certified mail with return receipt to Plaintiff's attorney on September 27, 2019, electing arbitration with JAMS and requesting dismissal or stay any and all actions in regards to the alleged debt pending the result of arbitration. (see Exhibit A, attached).

III

Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card agreement (see Exhibit B, attached Section I Page 6).

 

 

 

IV

The parties are bound by the Credit Card Agreement. The Arbitration Notice states among other things:

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.

 

 

V

The Federal Arbitration Act (FAA)9 U.S.C., section 1-2 provides:

"A written provision is any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or trisection or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon which grounds as exist at law or in equity for the revocation of any contract'.

VI

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.

"We have described this provision as reflecting both a "liberal federal policy favoring arbitration," Moses H. Cone, supra, at 24, and the "fundamental principle that arbitration is a matter of contract," Rent-A-Center, West, Inc. v. Jackson, 561 U.S.___,___(2010)(slip op.,at3). In the line with these principles, courts must place arbitration agreements on an equal footing with other contacts, Buckeye Check Cashing, Inc. v. Cardega, 546 U.S. 440, 443 (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 (1989)."

Furthermore, "the "principle 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.S. 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 saving clause); Section 3 requires courts to stay litigation or arbitral claims pending arbitration of those claims "in accordance with the terms of the agreement"; and section 4 requires courts to compel arbitration "in accordance with the terms of the agreement" upon the motion of either party to the agreement…"

VII

The Defendant elect’s arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Credit Card Agreement and to dismiss Plaintiff's complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day September 27, 2019

SEEUINCOURT

XXXXXX

XXXXXX, TEXAS 7XXXX

Defendant, Pro Se

VERIFICATION BY AFFIDAVIT

Personally, appeared before me the undersigned who on oath states the facts set forth is this MOTION TO COMPEL OR STAY ARBITRATION is true and correct to the best of his knowledge and belief.

______________________________

SEEUINCOURT, Defendant Pro Se

Witness my hand and official seal this the

___day of ____________, 20_____

SEAL

______________________________

Notary Public

My Commission expires:

___/___/______.

I certify that I mailed a copy of this MOTION TO COMPEL OR STAY ARBITRATION to:

MIDLAND FUNDING LLC |

|XXXXXX0

XXXXXXX, TEXAS XXXXX0

By SEEUINCOURT, Defendant, Pro Se

Date: September 27, 2019

 

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Don't file the MTC until you get things situated with the card agreement.  Simply file the answer on time denying all allegations and list an affirmative defense of "lack of subject matter due to a private arbitration agreement".

Who does the JDB list as the creditor for the paypal account?  Does the complaint list Synchrony Bank?

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@fisthardcheese I found it!!! Its a 2017 Paypal Credit that was owned by Comenity Capital Bank!!! I happen to stumble upon an article that listed the transfer from Comenity to Synchrony. My question is  should I print out the comenity capital 2017 one and the updated 2019 one from Synchrony since my default was 2/18 and there is no agreement for that in-between time frame that I can find.  Comenity Capital did not have an agreement for 2018 in the archives it drops off at 2017. when my card defaulted 2/18  Synchrony didn't have an agreement until they took  over fully and that first agreement shows up that dates 6/19. From what I was reading is that when they were going to take over they just notified paypal credit customers that their was going to be a change and an increase in apr. @WhoCares1000 said "I would take the last agreement before the default (which means if there is a 2017 Paypal agreement, grab that. If they say that was not the agreement in force, make they prove it" either way both agreements have the arbitration clause and im sure they aren't going to drop it for one year then bring it back. 

On the last arbitration agreement by Comenity Capital it has this bit in the arbitration clause... interesting can I demand them to pay it since its stated in the arb clause?

( If the value of the relief sought is $10,000 or less, at your request, we will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by us should be submitted to the AAA in your Demand for Arbitration and we will make arrangements to pay all necessary fees directly to the AAA. If the value of the relief sought is more than $10,000 and you are able to demonstrate that the costs of accessing arbitration will be prohibitive as compared to the costs of accessing a court for purposes of pursuing litigation on an indiv idual basis, we will pay as much of the filing, administration, and arbitrator fees as the arbitrator deems necessary to prevent the cost of accessing arbitration from being prohibitive. In the event the arbitrator determines the Claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees associated with the arbitration paid by us on your behalf that you otherwise would be obligated to pay under the AAA's rules.)
 

Anyways let me know what you think about all of this!! Since the claim I was served with states Synchrony, but when I defaulted I was technically still under Comenity Capital Bank agreement. 

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Do a Google search for an article on the sale too and bring that in. I think the sale occurred in July of 2018 so you can show the court that article to show that the Comeity Bank agreement was in force at the time. I doubt the attorney will fight you too much on that because Synchrony has a more consumer friendly arb agreement than Comeity. That also explains why the lack of agreements during 2018. There was other stuff going on.

As for the bit about they pay, JAMS has a similar setup where you pay $250 to get the case started and then the creditor pays from here on out so that is not shocking. They also will not be able to claim that your case is frivolous because they are the ones that sued you and you requested that they follow the contract and use private arbitration.

So get your answer filed. The answer should be a general denial and an affirmative defense on both account that the court lacks subject jurisdiction due to the arbitration clause. You can then work on the MTC this weekend and next week. You don't have to file the MTC immediately (and in fact, I would wait until the plaintiff gets the answer first).

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Since they were kind enough to state in their complaint which bank was the owner of the card, that is agreement to use. I would however request to use JAMS for the Victoria Secret card and AAA for the Paypal.

If they bring up later that Synchrony Bank was not the owner, then bring up the agreement from Comeity bank and show that it would not change your request for relief in the MTC, and that you would be willing to forgive the error in the complaint.

@fisthardcheese I think a link on your thread about arbitration might be helpful here.

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@WhoCares1000 and @fisthardcheese I filed my answer Friday and sent their attorney a certified letter with it too. The clerk at the window told me they would be in contact when a court date opens up. I asked if I bring the MTC to him and he said yes or I could email it. I would rather take it in. 

Now what I need help with is the MTC.... is the one I posted earlier on this thread ok?

Do I need the notary part or should I take it off?

Do I print out two MTC for each claim or stack it all into one MTC and the JAMS, AAA, 2 Agreements in to one package and take that to the court? 

MANY Thanks! 

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On 9/25/2019 at 9:27 AM, fisthardcheese said:

You should completely re-do that MTC.  I would make two separate sections for each of the Card Agreements and describe what gives the authority in each of the contracts to make two separate arbitration cases.  Both the Comenity and the Synchrony card agreements should have both AAA and JAMS listed in them.  I would put in my MTC asking for one to be ordered to arbitrate with JAMS and the other to be arbitrated with AAA.

page 1^

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@fisthardcheese I did redo the first MTC that I posted on page one. I re-added the mtc on page 2 of this thread revised. I added the verbiage for my 1 specific CC agreements and posted it again, but you told me not to file the MTC yet so I didn't know if I did it right or not. I don't understand how to start the verbiage of a MTC or how to layer it out. This layout was what I found from people on this board who file their MTC. I need to see a hard copy I can change words from because other then that I have no idea how to structure it out and will be lost. 

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7 hours ago, fisthardcheese said:

You should completely re-do that MTC.  I would make two separate sections for each of the Card Agreements and describe what gives the authority in each of the contracts to make two separate arbitration cases.  Both the Comenity and the Synchrony card agreements should have both AAA and JAMS listed in them.  I would put in my MTC asking for one to be ordered to arbitrate with JAMS and the other to be arbitrated with AAA.

 

6 hours ago, WhoCares1000 said:

@fisthardcheese the OP needs to see your A - Z page on arbitration and I don't think anyone has posted that yet. Can you kindly post that for the OP?

The link is in my signature every time I post.

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1 hour ago, fisthardcheese said:

 

The link is in my signature every time I post.

On mobile you don't have a signature and I use mobile 99% of the time. But when you say completely redo I'm thinking you mean everything you listed plus my heading, how the plaintiff is written out the first 3 sections of the MTC. When you're talking to someone who has no idea what a MTC format should be you cant say completely redo because I'm lead to believe i need a blank word sheet and find a whole new format like everything on it now is wrong. I ask specific questions so i know specifically what I should change or keep and none of those questions get answers so you just confuse me more then help me. 

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15 hours ago, SeeUinCourt said:

On mobile you don't have a signature and I use mobile 99% of the time. But when you say completely redo I'm thinking you mean everything you listed plus my heading, how the plaintiff is written out the first 3 sections of the MTC. When you're talking to someone who has no idea what a MTC format should be you cant say completely redo because I'm lead to believe i need a blank word sheet and find a whole new format like everything on it now is wrong. I ask specific questions so i know specifically what I should change or keep and none of those questions get answers so you just confuse me more then help me. 

If you read past the first sentence, you will get the more information.  I even put it in bold for you on the 3rd attempt. 

For the 4th time now - You need 2 separate sections.  You are sued on 2 different card agreements.  You need essentially 2 MTCs combined into one.  First section for one card agreement, second section for the other card agreement, and a 3rd section for case laws that apply to both.  Additionally, your title is incorrect.  Here is the link to the template, but yours will have to be setup for the 2 different accounts:

 

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8 hours ago, fisthardcheese said:

If you read past the first sentence, you will get the more information.  I even put it in bold for you on the 3rd attempt. 

For the 4th time now - You need 2 separate sections.  You are sued on 2 different card agreements.  You need essentially 2 MTCs combined into one.  First section for one card agreement, second section for the other card agreement, and a 3rd section for case laws that apply to both.  Additionally, your title is incorrect.  Here is the link to the template, but yours will have to be setup for the 2 different accounts:

 

I get what you posted you didn't need to post it 3 times it just makes you come off condescending and rude clearly I read it the first time so that's why I went back and changed the MTC this was before I found the paypal agreements so at that time I was only going to arbitrate one case hints the one agreement content. After I changed and posted again you just said don't worry about MTC yet file answer so I did.

I asked specific questions now that I am ready to file the MTC and they werent answered so posting the same thing an additional 2 times wasn't helpful at all. But thanks for answering one other additional question on your last post. I do appreciate your help. 

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MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION


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

1. That on or about September 10th, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on October 3rd, 2019, electing arbitration with JAMS (Comenity Bank Agreement) and AAA (Comenity Capital Bank/ Synchrony Bank Agreement) and requesting dismissal of this case. (see Exhibit A, Exhibit B, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement for Plaintiffs Claim 1 (Comenity Bank: Victoria Secret).

4. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement for Plaintiffs Claim 2 (Comenity Capital Bank to Synchrony Bank: PayPal Credit).  Claim 1 was in default during a time PayPal Credit was being sold from PayPal Credit issuer Comenity Capital Bank to Synchrony Bank.  (see Exhibit C, Exhibit D, attached).

5. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:(see Exhibit E, Exhibit F, Exhibit G, attached)

Arbitration Comenity Bank (Page 6, Section I)

·        
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.

Arbitration Comenity Capital Bank (Section 19. Pages 14, 15, 16)

·         You and We Agree to Arbitrate Disputes Between Us

If a dispute arises between you and us, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to prov ide you with a neutral and cost-effective means of resolving the dispute quickly. If you have a concern, please contact us first at (866) 528-3733 and we will do our best to resolve your concern to your satisfaction.

Unless you opt out of the Agreement to Arbitrate, you and we each agree to resolve any Claims (as defined below) in accordance with the provisions set forth in this Agreement to Arbitrate. Pursuant to this Agreement to Arbitrate, any Claims will be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert Claims in small claims court, if your Claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Terms and Conditions evidence a transaction in interstate commerce, and thus the Federal Arbitration Act, 9 U.S.C. § 1 et seq., governs the interpretation and enforcement of this Agreement to Arbitrate. The Agreement to Arbitrate shall survive the closing of your Account and/or the termination of the Terms and Conditions.

 

·         Claims Subject to Arbitration

We and you (including users, custodians, and beneficiaries of your Account) agree to arbitrate any and all disputes or claims between you and us, including claims involving Bill Me Later, Inc. and it’s or the Lender's agents, employees, officers, directors, predecessors in interest, and successors and assigns ("Claim(s)"). This Agreement to Arbitrate is intended to be broadly interpreted. Claims include, but are not limited to:

Federal and state statutory claims, common law claims, and those based in contract, tort, fraud, misrepresentation or any other legal theory; Claims or disputes that arose before the effective date of the Terms and Conditions or any prior Terms and Conditions (including, but not limited to, claims relating to advertising, promotions, or disclosures); and Claims or disputes that may arise after the termination of the Terms and Conditions

·         Notice of Dispute

A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). You may download a form Notice at https://www.paypal.com/us/webapps/mpp/ua/ppc-notice-dispute. Any Notice to the Lender or Bill Me Later, Inc. should be sent to Bill Me Later, Inc., Attn: Litigation Department, Re: Notice of Dispute, 2211 North First Street, San Jose, CA 95131. We will send any Notice to you to the mailing address we have on file associated with your Account; it is your responsibility to keep your mailing address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the Claims the party is asserting and the relief sought.

If you and we are unable to resolve the Claims described in the Notice within 30 days after the Notice is sent, you or we may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the website of the American Arbitration Association ("AAA") at www.adr.org. alternative.

·         Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR(S) MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR(S) MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER PAYPAL CREDIT USERS.

 

 

·         Arbitration Procedures

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator or arbitrators instead of a judge or jury, and court review of an arbitration award is very limited. However, the arbitrator(s) can award the same damages and relief on an individual basis that a court can award to an individual. The arbitrator(s) also must follow the terms of these Terms and Conditions as a court would. All issues are for the arbitrator(s) to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of the subsection above entitled "Prohibition of Class and Representative Actions and Non-individualized Relief," shall be for a court of competent jurisdiction to decide. The arbitration will be conducted by the AAA under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org.

 

 

Arbitration Synchrony Bank (Page 10, 11: Numbers 1-14)

·         CLAIMS AND PARTIES. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you (including any other user of your account), and us (including our parents, affiliates, agents, employees, officers, and assignees, and PayPal, Inc. and its affiliates) that directly or indirectly arises from or relates to your account, your account Agreement or our relationship, except as noted below. In addition, any assignee, agent, or service provider of ours that collects amounts due on your account are intended beneficiaries of this Arbitration section and may enforce it in full (notwithstanding any state law to the contrary).

·         This Arbitration section broadly covers claims based upon contract, tort, consumer rights, fraud and other intentional torts, negligence, constitution, statute, regulation, ordinance, common law and equity and claims for money damages and injunctive or declaratory relief, even if they arose before this section took effect. You may not sell, assign or transfer a claim.

·         Examples of claims subject to arbitration are disputes about an account transaction, fees, charges or interest, the events leading up to the Agreement (such as any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), an application for or denial of credit, any product or service provided by us or third parties in connection with the Agreement, credit reporting, benefit programs related to your account including any reward program, the collection of amounts due by our assignees, service providers, or agents and the manner of collection.

·         However, we will not require you to arbitrate any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered.

·         Only a court will decide disputes about the validity, enforceability, coverage or scope of this Arbitration section or any part thereof. However, any dispute that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator to decide.

·         NO CLASS ACTIONS. IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT (A) TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER, OR (B) TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSONS EXCEPT ACCOUNTHOLDERS ON YOUR ACCOUNT. THUS, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

·         PROCEDURES. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select either the American Arbitration Association (AAA), 120 Broadway, Floor 21, New York, NY 10271, www.adr.org, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, to administer the arbitration. If neither administrator can handle the dispute, a court with jurisdiction will appoint an arbitrator.



6. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

7. 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.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. __, __ (2010) (slip op., at 3). 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 (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 (1989) ."
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. Animal Feeds 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 saving 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 . . . "

8. The Defendant elect’s arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.



Respectfully submitted this day October 3rd, 2019


(Your name), Defendant, pro se

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@fisthardcheese Re-vised MTC how is this? I ended up adding the sell on PayPal in there because I have read where the court throws the arbitration case out for not having the correct agreement dates and I wanna have my behind covered just in case they see the date of the Synchrony agreement and it States June/2019, but my default is Feb 2018. I will be attaching Synchrony and Paypal's press release on the sale and an additional article that says Synchrony will not be taking over until the 3rd quarter of 2018. To show why there is no agreement for Synchrony at the time of default. 

So is this good enough to file or should I take things out, if so what specifically? 

 

Also where do I put the case number and the plaintiffs information? 

I do attach an affidavit correct?

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@seeUincourt 

If you are filing another motion, you need to withdraw the previous motion, and make sure you send the withdraw motion to the plaintiff. 

20% is very low for a settlement. 40% seems to be sort of standard. Sometimes you get lucky with OCs. 

If you are having a lot of trouble, consider doing a motion for extension of time. State that you are a pro se defendant, and you need time to explore attorneys. IDK your states laws, but doing certain motions will screw up your ability to use other motions. Look up your state's "bench rules" /trial rules. 

Also with your filings, make sure you have a section saying you gave service to the plaintiff with your signature. 

**I am not an attorney. Please consult an attorney*** 

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2 hours ago, Indy17 said:

@seeUincourt 

If you are filing another motion, you need to withdraw the previous motion, and make sure you send the withdraw motion to the plaintiff. 

20% is very low for a settlement. 40% seems to be sort of standard. Sometimes you get lucky with OCs. 

If you are having a lot of trouble, consider doing a motion for extension of time. State that you are a pro se defendant, and you need time to explore attorneys. IDK your states laws, but doing certain motions will screw up your ability to use other motions. Look up your state's "bench rules" /trial rules. 

Also with your filings, make sure you have a section saying you gave service to the plaintiff with your signature. 

**I am not an attorney. Please consult an attorney*** 

I haven't filed any motion yet. Just an Answer.

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@WhoCares1000 can you take a look at the revised MTC i posted. I really wanted to get this printed off today and file by tomorrow to get this done and over with and so i dont have to worry about sending stuff off anymore, but want a second pair of eyes to take a look at it. @fisthardcheese hasn't responded yet. 

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I have asked others to help you because although I understand the basics, I have never been in a position to actually use this strategy. I do think though that you need to understand this forward and backwards yourself because whatever MTC you file, you are going to have to defend it against a plaintiff that will be looking to find any way to stop you from using that right because of the cost involved (which is why they filed this as one case rather than 2 to begin with). I suggest reading @fisthardcheese's link again and keep reading until you think it looks right. Also review this thread to see what he has to say on the formatting. Some cookie cutter stuff in fine but this has to be specific to your own case and needs.

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