Sincetel

Help with Discovery?

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Hello, this is for a CC debt from a collection agency for about $1400. Court will be in Cuyahoga County, Oh. I turned in my answer to the court, also turned in a mtc arb. clerk seemed confused saying something along the lines of she though the muni court was already a form of arb? Not sure, either way she took everything and stamped it. Just received a letter from the court stating "All parties and their attorneys must be present and prepared to agree to a discovery and trial schedule" Fail to appear will result in judgement claim for party failing to appear etc...

So I am guessing the arb was denied. What will happen at this next hearing? What will be asked? Will I be paying anything on this day? Feel like I'm in way over my head now and ready to wave the white flag.

ty.

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You should have received a notice from the court denying your MTC, if that's what happened, so i wouldn't assume it has. It sounds like what you received was a notice of a pre-trial conference. These are usually scheduled as SOP. I would be prepared to argue for your MTC at this conference. 

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Sounds like you are dealing with a stupid clerk, and maybe a stupid court system as well, that doesn't know what a MTC Arb is.  Also sounds like a pretrial hearing has been scheduled.  You need to attend and argue for the MTC.  I agree with Harry, if the motion has been denied, you should have received an order to that effect.  Can you check if there is an online docket, maybe that will show the status of your motion?

If you filed the motion correctly, with a copy to the plaintiff's counsel, and followed all the local rules too (sometimes these courts have fees for motions), then the court HAS to rule on it,  They can't just ignore it.  Ohio case law on this:  Capital One v. Collins:  https://law.justia.com/cases/ohio/twelfth-district-court-of-appeals/2011/ca2011-05-090.html    (Note:  if you didn't file the motion properly, file it again, correcting any deficiencies.) 

At the pretrial, you need to be forceful in arguing for arbitration.  By filing the MTC, you have raised a jurisdictional issue that has to be addressed before anything else.  The law greatly favors arb, so the law is on your side. 

No, you don't have to pay anything at the pretrial.  But, you should be prepared for perhaps a less-than-neutral court magistrate to be very aggressive in urging you to settle with the plaintiff.  You need to be firm and forceful.  Don't let them browbeat or intimidate you.  Stand your ground.  YOU WANT ARB.  It's your right under the law and the contract.   Period.

And, if you want to use the arbitration strategy, you don't want to engage in discovery.   Doing so can waive your arbitration rights.

If your MTC Arb is denied, I would not go ahead with discovery and the normal litigation process.  You should have a right to an immediate appeal.  That is what I would do.

 

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6 hours ago, nobk4me said:

Sounds like you are dealing with a stupid clerk, and maybe a stupid court system as well, that doesn't know what a MTC Arb is.  Also sounds like a pretrial hearing has been scheduled.  You need to attend and argue for the MTC.  I agree with Harry, if the motion has been denied, you should have received an order to that effect.  Can you check if there is an online docket, maybe that will show the status of your motion?

If you filed the motion correctly, with a copy to the plaintiff's counsel, and followed all the local rules too (sometimes these courts have fees for motions), then the court HAS to rule on it,  They can't just ignore it.  Ohio case law on this:  Capital One v. Collins:  https://law.justia.com/cases/ohio/twelfth-district-court-of-appeals/2011/ca2011-05-090.html    (Note:  if you didn't file the motion properly, file it again, correcting any deficiencies.) 

At the pretrial, you need to be forceful in arguing for arbitration.  By filing the MTC, you have raised a jurisdictional issue that has to be addressed before anything else.  The law greatly favors arb, so the law is on your side. 

No, you don't have to pay anything at the pretrial.  But, you should be prepared for perhaps a less-than-neutral court magistrate to be very aggressive in urging you to settle with the plaintiff.  You need to be firm and forceful.  Don't let them browbeat or intimidate you.  Stand your ground.  YOU WANT ARB.  It's your right under the law and the contract.   Period.

And, if you want to use the arbitration strategy, you don't want to engage in discovery.   Doing so can waive your arbitration rights.

If your MTC Arb is denied, I would not go ahead with discovery and the normal litigation process.  You should have a right to an immediate appeal.  That is what I would do.

 

Hi, so as far as I know I filed everything correctly, i sent their lawyer everything i took to the clerk also, certified with cert of services on everything. And yes the clerk def didn't sound like she knew what she was talking about, even turned to ask another clerk about the arb and that's when they said let's just stamp everything just in case.

Here is a copy and paste of the full docket. As you can see they did update the docket with both my answer and mtc arb, so maybe that's a good sign?

Here is a copy and paste of all the updates on the case.

10/25/2019
  • E-MAILED TO ANTHONY H.
    RE: CASE CVF1903-- _ 16 TRANS NO 19001730
    HEARING DATE AND TIME
  • JUDGMENT ENTRY SERVED BY U.S. REGULAR MAIL TO DEFENDANT
10/23/2019
  • HEARING DATE AND TIME
10/22/2019
  • HEARING- 11/04/2019 AT 9:00 AM - PRE-TRIAL
10/21/2019
  • ANSWER
  • MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION
10/11/2019
  • CERTIFIED MAIL RETURN RECEIPT FOR CIVIL FILING FROM POST OFFICE MARKED RECEIVED
09/30/2019
  • E-CERTIFIED MAIL # 9314 8699 0440 00-----
    SERVED ON: 09/28/2019 TO:
    DELIVERED LEFT WITH INDIVIDUAL AT --,OH
09/28/2019
  • SUMMONS SERVED ON
09/26/2019
  • SUMMONS IN CIVIL ACTION
  • CIVIL FILING FEE FOR 1 DEFENDANT $130.00
  • PAYMENT - RECEIPT NO. 1910731 IN THE AMOUNT OF $ 130.00
  • E-CERTIFIED MAIL # 9314 8699 0440 0050 ----
    ISSUED ON: 09/26/2019 TO:
09/23/2019
  • CASE WAS FILED WITH COURT
  • COMPLAINT

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I know this is a long shot too but any chance they just don't make the trip from Michigan to Ohio for this? lol, that would be great but im not that lucky.

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11 hours ago, Sincetel said:

any chance they just don't make the trip from Michigan to Ohio for this?

If this goes to trial they will use local attorneys, or schedule it so they have 8 trials on the same day to make it worth their while to make the trip. They will also ask the court to allow their witness to appear telephonicaly, and the court will allow it unless you have a really good reason that it shouldn't.

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9 hours ago, Sincetel said:

I know this is a long shot too but any chance they just don't make the trip from Michigan to Ohio for this? lol, that would be great but im not that lucky.

Slim. Chances are they send a local yokel attorney instead of driving.

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What's going on here? 

12 hours ago, Sincetel said:
10/25/2019

...

  • JUDGMENT ENTRY SERVED BY U.S. REGULAR MAIL TO DEFENDANT

Did you get anything in the mail about "default judgment"?

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4 hours ago, Harry Seaward said:

What's going on here? 

Did you get anything in the mail about "default judgment"?

I think the judgment entry has to do with the order setting the pretrial.  If there was a default judgment, there would be no pretrial.

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More thoughts:

First, who is suing you, the OC or a JDB?  Who is the OC (just asking for terms of arb clause)?

A JDB will usually fold when you go for arbitration, especially for the small amount in dispute here.

Some things to keep in mind for the pretrial:  if, in fact, the plaintiff's attorney is a no-show, you should make an oral motion to dismiss the case with prejudice.

If the plaintiff does not respond to your motion (and JDBs sometimes don't), you should make note of that at the pretrial and demand that your MTC Arb be granted by default.  After all, if the plaintiff filed a motion and you didn't answer, they would win by default.  But don't be surprised if the court bends over backwards to accommodate them.  No, they won't extend the same leniency to you.

If they do send a local rent-a-lawyer, that too can be to your advantage.  Arb is probably above their pay grade.   They will probably request a continuance to get back to the plaintiff's counsel of record to see what to do.

 

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9 hours ago, nobk4me said:

More thoughts:

First, who is suing you, the OC or a JDB?  Who is the OC (just asking for terms of arb clause)?

A JDB will usually fold when you go for arbitration, especially for the small amount in dispute here.

Some things to keep in mind for the pretrial:  if, in fact, the plaintiff's attorney is a no-show, you should make an oral motion to dismiss the case with prejudice.

If the plaintiff does not respond to your motion (and JDBs sometimes don't), you should make note of that at the pretrial and demand that your MTC Arb be granted by default.  After all, if the plaintiff filed a motion and you didn't answer, they would win by default.  But don't be surprised if the court bends over backwards to accommodate them.  No, they won't extend the same leniency to you.

If they do send a local rent-a-lawyer, that too can be to your advantage.  Arb is probably above their pay grade.   They will probably request a continuance to get back to the plaintiff's counsel of record to see what to do.

 

JDB. Original Creditor is Credit One. JDB is LNVN i believe.

 

OK. TY, taking notes.

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14 hours ago, Harry Seaward said:

What's going on here? 

Did you get anything in the mail about "default judgment"?

Nope. Only thing I have received since turning in my answer and motion is the letter above stating the discovery time and date.

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And:  if the plaintiff claims your motion should not be granted because you have not initiated the arbitration with the arb forum, no, that is not the law in Ohio.  See Capital One v. Rotman

https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf

 

It is the plaintiff's responsibility to initiate the arbitration.  And this is a case from your appellate circuit (Cuyahoga Co.), so it is controlling law in your court.

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Thanks again. I took notes of the two listed case laws in this thread for tomorrow.

What kind of questions or how will this work tomorrow? Never been to court for anything. I'm just picturing myself walking in there and getting grilled like a witness on trial lol. yikes.

Also, I see you said don't accept a deal with them? What if the deal is pretty good, possibly cheaper than what arb will be? Still don't accept? I've also read I want to try to get them to mark it "paid as agreed upon" in the end, is this true also?

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On 11/2/2019 at 3:48 PM, nobk4me said:

And:  if the plaintiff claims your motion should not be granted because you have not initiated the arbitration with the arb forum, no, that is not the law in Ohio.  See Capital One v. Rotman

https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf

 

It is the plaintiff's responsibility to initiate the arbitration.  And this is a case from your appellate circuit (Cuyahoga Co.), so it is controlling law in your court.

Court is finished and this is what she gave me. Is this what I was looking for or still some work to do?

Edit- Thought I had a choice on jams or aaa but looks like aaa is only what's listed in the credit1 agreement.

 

20191104_095719.jpg

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Also, soon as I got there the attorney pulls me to the side trying to negotiate. $1000 was lowest he could settle. He then said I understand you elected arb, I am not trying to scare you but I just had a case that arb was elected and they billed them $3,000. lol. I was thinking BS!

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7 hours ago, Sincetel said:

Also, soon as I got there the attorney pulls me to the side trying to negotiate. $1000 was lowest he could settle. He then said I understand you elected arb, I am not trying to scare you but I just had a case that arb was elected and they billed them $3,000. lol. I was thinking BS!

Total BS.  Consumer rules in both JAMS and AAA limit arb fees to the consumer:  $250 for JAMS, $200 for AAA.

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7 hours ago, Sincetel said:

Court is finished and this is what she gave me. Is this what I was looking for or still some work to do?

Edit- Thought I had a choice on jams or aaa but looks like aaa is only what's listed in the credit1 agreement.

 

20191104_095719.jpg

 

The case is stayed, which is the good news.  The bad news is the court is requiring you to initiate the arbitration, which is contrary to Ohio law.   You have two options:  1.  just go ahead and initiate the arb with AAA; or 2.  file a motion for reconsideration. citing the Capital One v. Rotman case.

Option 1 has the disadvantage of costing you some money in arb fees (but, check the agreement, as sometimes they state the creditor will advance or pay for the arb filing fee).  Option 1 has the advantage of complying with the court's order and probably bringing the case to a rapid end.

Option 2 has the advantage of saving you the arb filing fee.  The disadvantage is asking for reconsideration could give the court the opportunity to change their mind and deny your arb motion altogether.  Perhaps unlikely, but you never know.  Courts are often a crapshoot.

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17 hours ago, nobk4me said:

 

The case is stayed, which is the good news.  The bad news is the court is requiring you to initiate the arbitration, which is contrary to Ohio law.   You have two options:  1.  just go ahead and initiate the arb with AAA; or 2.  file a motion for reconsideration. citing the Capital One v. Rotman case.

Option 1 has the disadvantage of costing you some money in arb fees (but, check the agreement, as sometimes they state the creditor will advance or pay for the arb filing fee).  Option 1 has the advantage of complying with the court's order and probably bringing the case to a rapid end.

Option 2 has the advantage of saving you the arb filing fee.  The disadvantage is asking for reconsideration could give the court the opportunity to change their mind and deny your arb motion altogether.  Perhaps unlikely, but you never know.  Courts are often a crapshoot.

Thanks, I am going with option 1. I already printed out the forms I need to fill out for them so i will fill those out and send those in by this weekend.

Quick question, a dumb one. In the user agreement it says if I elect arb i have to inform credit1. Obviously they sold my accounts so do i still inform credit1 or do they officially have nothing to do with it and just inform the actual attorney, in other words I'm assuming means send them (attorney) a copy of the AAA Forms?

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17 hours ago, nobk4me said:

Total BS.  Consumer rules in both JAMS and AAA limit arb fees to the consumer:  $250 for JAMS, $200 for AAA.

Yeah, that's what I figured. He also threw in a "it's fine if you want arb, just know all the LEG work that will need done" I capped LEG because he exaggerated it so much when he said it.

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4 minutes ago, Sincetel said:

Thanks, I am going with option 1. I already printed out the forms I need to fill out for them so i will fill those out and send those in by this weekend.

Quick question, a dumb one. In the user agreement it says if I elect arb i have to inform credit1. Obviously they sold my accounts so do i still inform credit1 or do they officially have nothing to do with it and just inform the actual attorney, in other words I'm assuming means send them (attorney) a copy of the AAA Forms?

No, you don't have to inform the OC.  Just the JDB's attorney.  The OC is out of the picture at this point.

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Some advice to others in Ohio:  when you prepare the MTC Arb, include as part of your proposed order that the plaintiff be ordered to initiate the arbitration, in accordance with Capital One v. Rotman.

Unless there is a valid reason for the defendant to want to initiate arb.  Such as, the clause includes both JAMS and AAA, and the defendant prefers JAMS.  If the plaintiff initiates, it's their choice, not yours.

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29 minutes ago, nobk4me said:
 

Some advice to others in Ohio:  when you prepare the MTC Arb, include as part of your proposed order that the plaintiff be ordered to initiate the arbitration, in accordance with Capital One v. Rotman.

Love this part:

"Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted." Capital One Bank USA v Rotman

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On 11/4/2019 at 6:04 PM, nobk4me said:

 

The case is stayed, which is the good news.  The bad news is the court is requiring you to initiate the arbitration, which is contrary to Ohio law.   You have two options:  1.  just go ahead and initiate the arb with AAA; or 2.  file a motion for reconsideration. citing the Capital One v. Rotman case.

Option 1 has the disadvantage of costing you some money in arb fees (but, check the agreement, as sometimes they state the creditor will advance or pay for the arb filing fee).  Option 1 has the advantage of complying with the court's order and probably bringing the case to a rapid end.

Option 2 has the advantage of saving you the arb filing fee.  The disadvantage is asking for reconsideration could give the court the opportunity to change their mind and deny your arb motion altogether.  Perhaps unlikely, but you never know.  Courts are often a crapshoot.

Just checked the court website for an update. Filed for Arb and paid the $200, showing the court the receipts. Here's the latest update..what to expect now?

judgement NEW-page-001.jpg

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