PRA filed objection to my MTC in small claims court

[thebear21]

•  
• PRA filed objection to my MTC

PRA filed an objection to MTC arbitration - stating that "I purposefully or accidentally misread the terms of the agreement." They go on to further state that one of the items that are "NOT" subject to arbitration any individual case brought to small claims court to collect money owed the plaintiff. That there is a formal process that I would need to request arbitration my self with an arbitrator.

Well according to my card account agreement it states:2)  " We will not require you to arbitrate 1) any individual case in small claims court or your states equivalent court, so long as it remains an individual case in that court; or 2) a case wefile to collect money you owe us, however, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

How do I respond to his objection motion. There is a hearing scheduled on my MTC next week and Plaintiff attorney's is requesting the court to deny my motion to dismiss based on my demand for arbitration. 

[Harry Seaward]

File a reply to their objection and attach the card agreement. Explain that it is they who purposefully or accidentally misread the terms of the agreement. The agreement merely states that they (PRA) will not require you to arbitrate any claims brought in a small claims court. There is nothing in any part of the agreement that precludes the court from ordering a small claims case into arbitration.

Edit: I'm generally not a fan of asking for sanctions on the first volley, but since they flat out accused you of intentionally misleading the court (exactly what they are now doing), i can certainly justify moving for sanctions at this stage. 

[Goody_Ouchless]

We should probably have a "Sticky" for each of these objections and how they were overcome. I believe we've seen judges that look at stuff like this and ask the plaintiff "really, dude?"

 

[thebear21]

Thank you for the response.

How would I address a sanction? In my reply to the objection.

Here is copy/paste of their objection: Appreciate any feedback

1. Defendant filed a motion to compel arbitration based on the parties' written agreement.  2. Defendant misread either purposefully or accidentally, the terms of the parties' agreement.  3. Under the hearing "resolving disputes with arbitration" is a list of what types of "disputes" are subject to arbitration.  One of the items that are NOT subject to arbitration are any individual cases brought in any consumer's State Small Claims Court to collect money owed to plaintiff.  4. Furthermore, defendant is going about requesting arbitration incorrectly.  5. There is a formal process by which the consumer would request arbitration herself with an arbitrator.  6. Requesting that the Court order arbitration when no said arbitration is required or contemplated in the agreement, is the incorrect way to go about requesting arbitration.  

 

[thebear21]

Here is the last part

 The specific basis or reasons for this objection are as follows:

Deny defendant's motion to dismiss based on her demand for arbitration.  There is a hearing on this matter on October 16th at 1 pm and the plaintiff will reiterate its request at said hearing.  

[BV80]

2 hours ago, thebear21 said:

Here is the last part

 The specific basis or reasons for this objection are as follows:

Deny defendant's motion to dismiss based on her demand for arbitration.  There is a hearing on this matter on October 16th at 1 pm and the plaintiff will reiterate its request at said hearing.  

As already pointed out, will not “require you” (force you) to arbitrate does not mean that arbitration is prohibited.  

While they will not require you to arbitrate, you can choose to do so.  

That’s the same as if your doctor tells you that he will not require you to take vitamins.  He’s not saying that you can’t take them.  He’s just not going to demand that you take them.  The choice to take them or not is up to you   

Who was the original creditor?

[thebear21]

Synchrony

[BV80]

54 minutes ago, thebear21 said:

Synchrony

Does the arbitration provision include the following?

“However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.”

[thebear21]

Yes

[BV80]

11 minutes ago, thebear21 said:

Yes

The sentence I quoted shows that arbitration is not prohibited in small claims court.  If you had responded to the small claims complaint by including a counterclaim for some wrongdoing on their part, they could have required you to arbitrate.  

[Pericles]

Synchrony agreements sometimes also have the following language;

"If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding."

"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."

 

They have argued that you have not followed the required process.  If the applicable arbitration agreement contains the above language, you can argue that filing a motion to compel in the lawsuit is consistent with the correct process described in the arbitration agreement.

[Goody_Ouchless]

41 minutes ago, Pericles said:

"If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding."

This ^^^

[thebear21]

Yes it includes: Below is a copy on what claims are subject to arbitration and how to start arbitration from the agreement.

• What claims are subject to arbitration 1.  If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below. 2.  We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3.  Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). 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.

  How to start an arbitration, and the arbitration process 1.  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 an arbitration administrator, which can be either the American Arbitration Association (AAA), 
 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, 1-800-778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, 
 www.jamsadr.com, 1-800-352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator. 2.  If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding. 3.  The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control. 4.  The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.
 

[fisthardcheese]

I would just type "LOL" in 172 pt font.  (kidding).  You just respond by quoting what you just quoted to us and then list the Black's Law Dictionary definition of "require" and point out that "not require" would be the opposite of that. And then point out that "you" as defined by the terms of the agreement means the Defendant in this case, and how when you put all 3 together it means that I, the Defendant, am NOT required, however, I am exersising my OPTION and my RIGHT according to the Supreme Court of the United States.  And THEN, this is optional, but me being who I am, I would state that it is the Plaintiff who is the one "purposefully or accidentally misreading the terms of the agreement", however I am more inclined to believe that a state licensed attorney is not accidentally misunderstanding the simple term "not require".

[thebear21]

HI All -I  had my hearing today on the MTC. The judge denied the motion and proceeded to trial. 

He was a real a$$. He stated their was an exception clause :

if either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below. 2.  We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court

Then he proceeded to go on to trial of the case. I held my ground and disputed the bill of sale as not identifying a name or an account, that the attached spreadsheet lists basic account info does not have any identification of where the spreadsheet originated etc, with no logo or identifying company.

I disputed the Affadavit that states business records were reviewed by PRA as not being firsthand knowledge.

I reiterated that I have never had an account with the Plaintiff and they were to provide me with itemization of the charges per the mediation, which is required in NH . In fact they never provided all of the above. The only information I rec'd was through this court. They argued that statements were sent to my address, which they had wrong. They had lane when it should be drive. The judge asked them if statements could have been delivered electronically and if they could provide a copy of the last payment check. They said they could not because it was done electronically.

Then they kept arguing that the post office would deliver and asked for my 9 digit number. I said I did not know that.

The judge said he would render his decision and notify me via the court automated system.

I felt the judge was a real jerk and he asked me questions and when I started to answer he accused me of interrupting him.  Finally I just waited for him to ask if I had anything to add.

I guess I can file an appeal on the MTC.

 

 

[fisthardcheese]

I would appeal.  The judge is sorely wrong.

[Robby8900]

8 minutes ago, fisthardcheese said:

I would appeal.  The judge is sorely wrong.

I wont know exactly what the judge said until my friend get the paperwork in the mail.

[thebear21]

I finally rec'd my order from the Judge.:

"The motion to dismiss was argued in court. The argument fails because the plain language in Exhibit A (credit card agreement) indicates a single small claims case to collect funds is an exception to the Arbitration requirement. Therefore the Motion to Compel Arbitration / Dismiss is denied."

It goes on to state that the Judge also ruled for the Plaintiff because invoices were sent to my address even thought the address was wrong. However, this was a minor error on the statement is not likely to return mail, The plaintiff has no evidence of returned mail in their possession. Therefore judgement entered for Plaintiff.

Then I rec'd another notice "Judgement for the Plaintiff" hereby ordered to pay Plaintiff within 30 days.

Should I file an appeal and what do I appeal? Any feedback is appreciated.

[fisthardcheese]

You need to see how appeals are done in your small claims court.  If all appeals are De Novo in small claims, you don't need a reason at all.  If you must present a reason, then you state that the judge erred in denying your motion to compel.

And he erred big time.  Clearly he needs a remedial reading lesson again.

[thebear21]

It looks like in NH you have to file a "Motion for Reconsideration" - stating what I believe to be errors.

14 days to file Motion and 30 days to file an appeal to the upper court.

There were several errors, the MTC for one; and the judge allowing the Plaintiffs 3 exhibits. I argued that the Plaintiff failed to share the evidence (bill of sale, excel spreadsheet, and affidavit of PRA employee who is the keeper of the records) The judge allowed the Plaintiff to enter the evidence because the Plaintiff said he mailed May 2018, more than a year ago. In NH you have to file through efiling  system and the Plaintiffi failed to file through the efiling protocol therefore the evidence should have been rejected. The judge got into a spiel about he US Postal service and he kept hampering on that.

Any help in filing Motion for Reconsideration and appeal would be appreciated.

[Harry Seaward]

From my experience and observation, a motion for reconsideration is a complete waste of time. First, the application of a MfR is generally limited to discovery of 'new information' that wasn't available to you at trial. Second, motions for reconsideration usually go back to the original judge, so without new info, you're asking the same judge to admit he made a mistake.

If your rules require that you file a MfR before you can file an appeal, then that's what you'll have to do. If, however, you have the option for a direct appeal without having to file a MfR first, that's absolutely the route i would take. 

[thebear21]

Yes I can by pass the MFR and appeal. In my research many advised against MFR and suggesting direct appeal. Do I suggest the cases below and state the Judge made in error in determining that there was an exception to the arbitration requirement? Do I cite the cases below as well?

Below is MTC I submitted:

MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION, and PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION
1. That on or about April 24, 2019, Plaintiff filed its Complaint against Defendant. Defendant denied Complaint
2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).
3. The parties are bound by the Credit Card Agreement, which states in part "If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account" (“emphasis added”)
4. While the Federal Arbitration Act (FAA) 9 USC governs the arbitrability of this dispute for several reasons, including Plaintiffs operability throughout New Hampshire and several other states, the analysis would be the same under the New Hampshire arbitration statute, see NH Rev Stat § 542:1 (2014)
542:1 Validity of Arbitration Agreements. – A provision in any written contract to settle by arbitration a controversy thereafter arising out of such contract, or an agreement in writing to submit to arbitration any controversy existing at the time of the agreement to submit, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. The provisions of this chapter shall not apply to any arbitration agreement between employers and employees, or between employers and associations of employees unless such agreement specifically provides that it shall be subject to the provisions of this chapter.
5. As with the FAA, New Hampshire public policy strongly encourages arbitration, as “there is a presumption of arbitrability if the contract contains an arbitration clause” State v. Phillip Morris USA Inc., 155 N.H. 598, 604 (2007). See also Cookson Co. v. N.H. Ball Bearings, Inc., 147 N.H. 352, 355(2001); Pine Gravel v. Cianchete, 128 N.H. 460, 464, (1986)(noting that RSA ch. 542 changed the common law by barring any legal action when a contract contains an arbitration clause).
Under the FAA and New Hampshire’s arbitration statute, there is a presumption of arbitrability in any contract that contains an arbitration clause. See, e.g., Moses H. Cone Mem’l Hospital, 460 U.S. 24, 24-25(1983) (“Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration.”); Cookson Co., 147 N.H. at 355-356 (“there is a presumption of arbitrability of the contract contains an arbitration clause” and a particular grievance is not arbitrable only if “it is determined with positive assurance that the [contract] is not susceptible of an interpretation that covers the dispute”)(internal quotations omitted).

With this motion, I am requesting the following relief:  Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

[Harry Seaward]

I would say this is the error of law that you should focus on:
"The argument fails because the plain language in Exhibit A (credit card agreement) indicates a single small claims case to collect funds is an exception to the Arbitration requirement."  The agreement doesn't provide an "exception to the arbitration requirement".  The agreement merely says the plaintiff won't exercise their arbitration option if they bring a lawsuit to collect money.  The court's finding is a fundamental and prejudicial misunderstanding of the contract language.

The FAA info is great and all, but honestly, that only comes into play because there is an arbitration agreement in the first place.  You haven't even gotten to that point with the lower court.  The lower court basically found that the arbitration agreement negated itself.  You have to get the appellate court to reverse that finding before anything from the FAA or any other authority comes into play.

[thebear21]

the Motion stated above is what I had filed before the hearing and what the judge denied.

So I should claim the Judge made an error with regard to the Arbitration requirement and focus on that the agreement and that does not provide an exception to the arbitration requirement.

Not sure if I should add anything else or if I should tear apart the agreement. The appeal states to claim the error and back up by law.

My husband told me to just pay and be done with it, but its the principal of the whole process and what a racket they have going on here in NH. Supposedly the Judge that presided over my case was caught with his hand in the cookie jar and only received a slap on the wrist from the higher court. 

[fisthardcheese]

5 hours ago, thebear21 said:

So I should claim the Judge made an error with regard to the Arbitration requirement and focus on that the agreement and that does not provide an exception to the arbitration requirement.

Yes.  The judge clearly stated his desicion was based on the language in the contract. You must explain (as if talking to a child but no condescending) that the contract does NOT say what the judge stated that it contained.

Remember above where I posted that you should respond with the actual definitions of the words in the contract according to the black's law dictionary.  This would still apply here.Break down what the judge said about the contract "exception" and then point to the contract and show that it actually does not show the exception that the judge found.  That's it, really.  That is your entire argument.