ASatts

I, too, am being sued by CROWN ASSET MANAGEMENT- Hamilton County, Ohio

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Levy & Associates, LLC

3. How much are you being sued for? $6,039.97

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

5. How do you know you are being sued? (You were served, right?) Started receiving junk mail from local attorneys, later looked up the court record and confirmed the case. Filed 10/10/19

6. How were you served? (Mail, In person, Notice on door) USPS left notice on the door, later picked up at post office. 10/28/19

7. Was the service legal as required by your state? I think so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I received a letter on 7/25/19 from Levy & Associates that I mistakenly disregarded as another transfer/sale of the debt. It was a "placed with our office for collection" letter, "notify us within 30 days if you dispute..." I did not respond.

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

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) August 2016

11. When did you open the account (looking to establish what card agreement may be applicable)? Not sure the month, 2014.

12. What is the SOL on the debt? To find out: Is this the state I resided in when I opened the account? South Carolina - 3 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). Case status is open. Court Clerk informed me they now provide free legal assistance by appointment, I might look into that.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No. Is it too late? Will this help me later in arbitration? That's my strategy btw, that's why I'm here! Synchrony has an arbitration clause and offers the choice of AAA or JAMS.

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. It may be useful to the court, but will it be useful if my strategy is arbitration?

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? I have 28 days (Monday, November 25) to respond to their cookie cutter complaint:

1. Upon information and belief, Defendant(s) resides in Hamilton County, Ohio. Plaintiff, is the assignee of Defendant's Synchrony Bank account, account #XXXXXXXX ("Account").

2. Defendant owes Plaintiff the sum of Six Thousand Thirty-Nine and 97/100 Dollars ($6,039.97) for money owed to the Plaintiff via Defendant's use of the Account provided to Defendant.

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

4. As a result of said breach, Defendant owes Plaintiff the sum of Six Thousand Thirty-Nine and 97/100 Dollars ($6,039.97). A copy of a statement is attached hereto, and incorporated herein, as Exhibit "A".

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

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

7. Said Account was not conferred gratuitously, Defendant was expected to pay on said Account, and as a result Defendant(s) has been unjustly enriched, all in the sum of Six Thousand Thirty-Nine and 97/100 Dollars ($6,039.97).

8. Wherefore, Plaintiff demands judgement against Defendant(s), jointly and severally if more than more, in the sum of Six Thousand Thirty-Nine and 97/100 Dollars ($6,039.97), plus interest at 5% per annum from the judgement date, the court costs expended herein and all other relief that may be issued as provided by law.

 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exbibit "A" is page 1 of my March 2018 statement, and pages 2-3 of my August 2017 statement. Also included is a Bill of Sale:

Crown Asset (CADS)-- PLCC CAD -- June 2018

For value received and in further consideration of the mutual covenants and conditions set forth in the Forward Flow Accounts Purchase Agreement (the "Agreement"), dated as of this 5th day of July, 2017 by and between Synchrony Bank formerly known as GE Capital Retail Bank; RFS Holding LLC. and Retail Finance Credit Services, LLC., ("Seller") and Crown Asset Management, LLC ("Buyer"), Seller hereby transfers, sells, conveys, grants, and delivers to Buyer, its successors and assigns, without recourse except as set forth in the Agreement, to the extent of its ownership, the Accounts as set forth in the Notification Files (as defined in the Agreement), delivered by Seller to Buyer on June 19, 2018, and as further described in the Agreement.

18.  How did you find out about this site? Every good Google search leads back here. I have read a lot and am familiar with most of the terms but never thought I'd be writing a formal court document. I also don't know what I thought was going to happen if I just kept ignoring that looming debt in the back of my mind (and bottom of my credit report). Hasn't been detrimental till now.

Since I thought I had 28 days from date filed, I was super expedient in preparing 1.) My answer to the complaint 2.) MTC 3.) Proposed Order granting MTC 4.) Affidavit to accompany card holder agreement. I'm just looking for a little advice on what else to prepare? There are no special rules pertaining to the filing of motions. Am I just going to walk in and get this stuff stamped and signed, or will I get drilled by the judge? Hoping to be as prepared as possible for what to expect.

 

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It appears you have been doing your homework so far. 
 

Yes. Arbitration generally works very well with Synchronicity accounts bought up by JDBs. That would be a winning strategy.  
 

Your next steps involve some searching in the forum:

1.  Look up how to do an MTC

2.  Look up how to file an answer with arbitration as an affirmative defense. 
 

3. Look up Ohio cases to see if there is anything special.  
 

Afterwards, you will be ready to write and file your response. 
 

Best wishes. 

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Here is a recent thread by an Ohioan.  I have cited some Ohio case law there that may be of help to you.

 

 

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Oh, and unless there is an actual hearing or trial, you will be dealing with the court clerk when filing papers.  Not the judge.  In fact, the judge shouldn't be communicating with you, without the other party present.  That's ex parte communication, which is forbidden.  It works the other way too.  The judge can't communicate only with the plaintiff, either.

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Crown Asset has already won their judgment against me, and they are suing me once again.  They know I'm on SSI and Food Share so why do they continue to harass me with these lawsuits?  Crown is just wasting the court's time with these repeated lawsuits against me.   

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11 hours ago, disabled_in_debt said:

They know I'm on SSI and Food Share so why do they continue to harass me with these lawsuits?  Crown is just wasting the court's time with these repeated lawsuits against me. 

Some creditors have a hardship policy and will stop collections.  Others like this one just don't care.  They are willing to risk that while you may be collection proof now it doesn't mean that circumstances may change in the future netting them payment.  Usually it is that the consumer NEEDS new credit and is forced to deal with them finally.  It isn't personal.

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18 hours ago, Clydesmom said:

Some creditors have a hardship policy and will stop collections.  Others like this one just don't care.  They are willing to risk that while you may be collection proof now it doesn't mean that circumstances may change in the future netting them payment.  Usually it is that the consumer NEEDS new credit and is forced to deal with them finally.  It isn't personal.

Ah, Crown probably found out that my FoodShare benefits ended, temporarily.  It can't be a coincidence that Crown filed their suit against me in the same month my FoodShare benefits ended. Can Crown somehow get access to that info?    

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Update! Time to get the conversation rolling. Things are getting interesting, and hopefully you all have some good advice and I haven't necessarily shot myself in the foot.

Key points:

1. I filed my MTC arb on November 19, and copy to Levy & Associates.

2. Notice of court date was sent on November 25 (I did not receive until December 6)

3. Motion hearing set for Tuesday December 10.

4. Received a response to my motion from Levy & Associates, filed with the court on December 3. Attaching the scanned copy here!

 

I had read earlier that Synchrony Bank has a "good" arbitration clause, but this attorney said that my claim is inaccurate, and that this case is actually NOT subject to arbitration. From the Card Agreement, he cites:

"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."

I am just posting this now and will read this motion more carefully to prepare my argument for Tuesday! Thank you in advance for any advice given!

Levy response to MTC arb dated 12-3-19.pdf

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Here's the text from Levy's response:

"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." [emphasis added]

This part of the arbitration clause merely states that they, Crown Asset Management, will not require you to arbitrate these types of cases.  It in no way takes away your right to arbitration.

 

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That is exactly how I interpreted it! I hope the judge does too. It's so interesting what happens when the Defendant does anything other than roll over and die for these JDBs.

So at the motion hearing on Tuesday, I am prepared to argue my case but in the event the judge denies my MTC, I will appeal. How will I make it known at that time that I disagree and want to appeal the decision?

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3 hours ago, ASatts said:

That is exactly how I interpreted it! I hope the judge does too. It's so interesting what happens when the Defendant does anything other than roll over and die for these JDBs.

So at the motion hearing on Tuesday, I am prepared to argue my case but in the event the judge denies my MTC, I will appeal. How will I make it known at that time that I disagree and want to appeal the decision?

"We will not require you to arbitrate"

There's nothing in this text that prevents you from arbitrating.

Good luck on Tuesday!

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@ASatts In my opinion, you should be prepared to argue against all of the arguments raised in Plaintiff's Response in opposition to your motion. It is easier to do this than to go through the appeal process. If you haven't seen this in any of the other Ohio threads, it's a good overview:  https://www.jacksonlewis.com/sites/default/files/docs/Compelling and Staying Arbitration in Ohio.pdf

 

TJX REWARDS® PLATINUM MASTERCARD® ACCOUNT AGREEMENT

"• Governing Law for Arbitration
 This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award."

"RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED."

"• 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 TJX Companies, Inc. if it relates to your account, except as noted below. 

2. We will not require you to arbitrate: . . . 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."

IANAL. If you make a demand for arbitration, they must arbitrate any dispute or claim if it relates to your account. If they make a demand for arbitration, you must arbitrate any dispute or claim if it relates to your account, except as noted. If you aren't in small claims or equivalent court, the pertinent exception here is that they will not require you to arbitrate a case they file to collect money they claim you owe them. However, if you claim any wrongdoing in your response to the lawsuit, they may require you to arbitrate that claim. Nowhere in this arbitration section's paragraph 2 does it state that you give up your right to demand arbitration for a covered dispute if they might choose to relinquish their right to demand to arbitrate claims under certain conditions. They do reserve the right to demand you to arbitrate if you respond to that same collection case with a claim of "wrongdoing." 


 

Ohio case law strongly supports the arbitration of disputes. Williams v. Aetna Fin. Co., 83 Ohio St.3d 464, 471, 1998-Ohio-294, 700 N.E.2d 859. When a claim falls within the scope of an arbitration provision there is a presumption in favor of arbitration. Id. An agreement to arbitrate must be enforced unless "'it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, ¶ 14, quoting AT & T Technologies, Inc. v. Communications Workers of Am. (1986), 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648.

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@ASatts

Plaintiff's Response asserts on page 3 that a "cursory inspection of JAMS website will reveal that the nearest JAMS office is located in Detroit, Michigan, a forum more than 250 miles from Defendant's home."  However, a "cursory inspection" of the same JAMS website's Consumer Arbitration Minimum Standards section guarantees Defendant's right to an arbitration hearing in Cincinnati, Ohio. "JAMS Policy on Consumer Arbitrations Pursuant to Pre-Dispute Clauses Minimum Standards of Procedural Fairness"  ( https://www.jamsadr.com/consumer-minimum-standards/, accessed on 12/7/19.) at Rule 5 states, "The consumer must have a right to an in-person hearing in his or her hometown area." 

The governing Cardholder Agreement on page 4 under the section, "How to start an arbitration, and the arbitration process," at paragraph 4 states, "The arbitration will take place by phone or at a reasonably convenient location."  Both the JAMS consumer rules and the Cardholder Agreement require that arbitration be conducted either by phone or in-person in a convenient location in Defendant's hometown area. Contrary to Plaintiff's assertions, arbitration will not unduly inconvenience either party. 

 

" . . . a financial injustice to Defendant's own cause" Plaintiff's Response, page 3. 

The Cardholder Agreement page 4:

"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." 

"4.  ...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."

JAMS Consumer Minimum Standards Rules:

"7.  With respect to the cost of the arbitration, when a consumer initiates arbitration against the company, the only fee required to be paid by the consumer is $250, which is approximately equivalent to current Court filing fees. All other costs must be borne by the company, including any remaining JAMS Case Management Fee and all professional fees for the arbitrator's services. When the company is the claiming party initiating an arbitration against the consumer, the company will be required to pay all costs associated with the arbitration."

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@ASatts  

TJX REWARDS® PLATINUM MASTERCARD® ACCOUNT AGREEMENT

"• Governing Law for Arbitration
 This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. . . ."

The Federal Arbitration Act (FAA)Title 9, US Code, Section 1-14

Section 2. Validity, irrevocability, and enforcement of agreements to arbitrate
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 a 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.

Section 3. Stay of proceedings where issue therein referable to arbitration
If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

 

From the Ohio attorney white paper on compelling & staying arb:

The FAA
An arbitration agreement falls under the FAA if the agreement:

  •  Is in writing.
  •  Relates to a commercial transaction or maritime matter.
  •  States the parties’ agreement to arbitrate a dispute. (9 U.S.C. § 2.)

Intersection of the FAA and Ohio Law
If an agreement falls under the FAA, the Ohio state court applies the federal standard for arbitrability when determining whether to compel or enjoin arbitration, rather than evaluating these threshold questions under Ohio state law (see Southland v. Keating Corp., 465 U.S. 1, 12-13 (1984); see also Practice Note, Compelling and Enjoining Arbitration in US Federal Courts: Arbitrability).
However, the federal standard must be consistent with Ohio law (see Academy of Medicine v. Aetna Health, Inc., 842 N.E.2d 488, 492 (Ohio 2006)).

Threshold Issues for the Court to Decide
When deciding an application to compel or enjoin arbitration, the court cannot rule on the merits of the claims underlying the arbitration (see Academy of Medicine, 842 N.E.2d at 492). The court instead plays a gatekeeping role that is limited to determining issues of substantive arbitrability, such as whether:

  • The agreement is enforceable (see Valid Arbitration Agreement).
  • The agreement covers the parties’ dispute (see Scope of Arbitration Agreement).

(R.C. 2711.01, 2711.02, and 2711.03; see Benjamin v. Pippoly, 800 N.E.2d 50, 57 (Ohio App. 10th Dist. 2003); Substantive Arbitrability.)

Scope of Arbitration Agreement
A court cannot compel a party to arbitrate a claim the party has not agreed to arbitrate. Ohio courts therefore determine whether the scope of the parties’ arbitration agreement covers the issue involved in an action. (See Park Bldg. Condominium Association v. Howells & Howells Enter., L.L.C., 2017 WL 1507331, at *3 (Ohio App. 8th Dist. Apr. 27, 2017).)

Under Ohio law, a dispute is outside the scope of an arbitration agreement if the parties could maintain the action without reference to a contract containing an arbitration clause (see Locum Med. Group v. VJC Medical, L.L.C., 2015 WL 4599441, at *3 (Ohio App. 8th Dist. July 30, 2015)). [Cite as Locum Med. Group, L.L.C. v. VJC Med., L.L.C., 2015-Ohio-3037.]

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Thank you endlessly @Brotherskeeper ! I am armed with knowledge and confidence thanks to the contributions of all. Hoping to leave a trail of breadcrumbs so someone after me may benefit as I have!

My last question is procedural: Should I prepare something in writing to respond to their points? Or will I just do this verbally?

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57 minutes ago, ASatts said:

My last question is procedural: Should I prepare something in writing to respond to their points? Or will I just do this verbally?

IANAL As I understand your Ohio rules, a written Reply to Plaintiff's Response in Opposition to your Motion has to be done by leave of the court. This means that you would have had to have filed a motion, with your written Reply attached, with the court within the time period prior to the hearing as stated in the rules. The court would give its permission to accept your written Reply, or deny your motion for leave to file it. So, I believe it's too late to submit anything in writing to the court. You will need to make an oral argument, using written materials. 

If I were you, I'd have a binder with written bullet points for each of their arguments, like I've done in my posts above. Make the font large enough to read at a glance. Have your Motion to compel, your affidavit, the contract, the FAA rules and any other documents with highlighed areas or tabs for easy access.

They claim that the arb clause states that since they don't require you to arbitrate certain disputes under certain conditions (voluntarily giving up their rights) means that you give up your rights to arbitration, too. You've interpreted that arb clause to mean something quite different. You have to convince the judge that your interpretation is correct, or at least plausible enough that any ambiguity of the contract's clause should be resolved in your favor. Here is the Ohio Supreme Court quoting the US Supreme Court:

An agreement to arbitrate must be enforced unless "'it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" Academy of Medicine of Cincinnati v. Aetna Health, Inc., 108 Ohio St.3d 185, 2006-Ohio-657, 842 N.E.2d 488, ¶ 14, quoting AT & T Technologies, Inc. v. Communications Workers of Am. (1986), 475 U.S. 643, 650, 106 S.Ct. 1415, 89 L.Ed.2d 648.

Know your case backwards and forwards. Have back-up citations in the contract and the law to support your facts. Good luck tomorrow! 

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Update!
After two sleepless nights spent preparing for this morning, my hearing has been rescheduled for January 10, 2020.

The reason for this is that the Court did not receive Plaintiff's Response dated December 3, 2019.

Before any comments could be made, other than swearing an oath and identifying myself, the opposing counsel admitted to not receiving a filed copy of the Response, and therefore requested a continuance. I agreed, thinking at the least I'll have more sleepless nights to prepare even further. But in hindsight, I am wondering if the court sided with them simply because as a self represented defendant I was not being taken seriously? After all my reading on Capital One Bank v. Collins, it seems to me that the court has to rule on my motion. In fairness, they would have to also rule on the Plaintiff's motion as well but since it wasn't even filed, should the magistrate have ruled on mine today? Opposing counsel (simultaneously representing MIDLAND in a separate case at the same hearing!) only had an e-mail with a sworn copy of the Response. The Response I received from Levy & Associates on December 6 was postmarked in Newark, Ohio (Columbus Area).

No wonder I didn't see their filing when I checked the case history online on December 6.
image.png.b22156ec3a86520dc2b8e5a174144680.png

So, Matthew Salyer, "Top Rated Creditor Debtor Rights Attorney in Newark, OH," not only did you fail to file, you also failed to show up! I know his personal appearance is not the issue, but this just furthers my disdain for these creeps, in general. Lazy, faceless sleazes who prey on consumers for a living. Despicable.

Well, if nothing else, this failure helps my case, right? If part of their argument is that they seek a quick resolution to this case, I would think the failure to file their response properly and timely should be held against them! Would I have been given the same consideration if I had failed to submit my response? Aren't these professionals?!

Which brings me to my next point of contention. The Magistrate, with an unsettling resemblance to Nancy Polosi, made very clear her disagreement with my self representation. She pointed out that this is not a small claims court, and appearing Pro Se is (basically) a slap in the face to those who have completed the requisite amount of hours to be a licensed attorney, etc etc etc. She said the law is complex, and simply looking up information on the internet is not enough for the court. She strongly urged me to retain an attorney prior to the next hearing. I am just speechless. I didn't lose, yet. But I definitely need to carry a bigger stick!

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You always have the right to represent yourself.  But, it is not uncommon for attorneys, judges and magistrates to exhibit disrespect for pro se litigants.

You need to review Rule 53 of the Ohio Rules of Civil Procedure.  Rule 53 deals with magistrates.  Note that the magistrate's decision (which would come at some point) is not final. It is not the judge's decision, and under the rules, you have the right to file objections to it.  You can also file a motion to disqualify a magistrate for bias.

However, to prove bias, you need to have a record of what she said.  Meaning, a transcript or recording.  I am guessing there isn't a record?  What I have seen, is these conferences with magistrates are held without a record being made.   Would you be able to record the next one?  Unfortunately, the local court rules often prohibit cell phones or recording devices in the court.

Something else to consider, after this is over, if she really screws you over:  filing a complaint with the Ohio Supreme Court:

http://www.supremecourt.ohio.gov/DisciplinarySys/odc/complaint.asp

Of course, appealing an adverse ruling is also an option.

 

 

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6 hours ago, ASatts said:

She pointed out that this is not a small claims court, and appearing Pro Se is (basically) a slap in the face to those who have completed the requisite amount of hours to be a licensed attorney, etc etc etc. She said the law is complex, and simply looking up information on the internet is not enough for the court. She strongly urged me to retain an attorney prior to the next hearing.

Unless I missed it, we haven't seen your motion to compel. Is it properly done according to your Ohio court rules? 

Did I understand correctly that the magistrate received a copy of Plaintiff's Response but the attorney appearing on behalf of Plaintiff had not received an official copy of the Response and requested a continuance? 

Can you check your rules to see if you can file a motion for leave to file a written Reply to Plaintiff's Response to your MTC? MikeB35's threads and other Ohio threads have examples. It might be one way for you to demonstrate to the magistrate that you aren't pulling things off of the internet.

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16 hours ago, Brotherskeeper said:

Unless I missed it, we haven't seen your motion to compel. Is it properly done according to your Ohio court rules? 

Attaching here. I can poke holes in it for sure. I feel like I hurried up and filed and should have put it out there for review. To help, here is Rule 14 from the local rule book for Hamilton County regarding Motions and memoranda:

RULE 14. Motions, memoranda and procedure thereon
(A) ALL motions shall be accompanied by a memorandum in support of the motion which shall be a brief statement of the grounds for the same, with citations of authorities relied upon, and (except in the case of an ex parte motion) proof of service in accordance with Civil Rule 5. All memoranda filed with a motion or in response thereto shall include page and document references for all factual assertions. (Amendment effective April 15, 1993)
(B) Any memorandum contra to said motion shall be served upon movant's trial attorney within ten days from the date the memorandum in support of the motion and proof of service thereof, was served. Failure to serve and file a memorandum contra may be cause for the Court to grant the motion as served and filed. A reply memorandum may be served and filed within seven days of the service of the memorandum contra. The time periods set forth in this Paragraph B may be extended by the Court, for good cause shown, upon application therefor:
(C) 1. No motions in civil cases, will be set for oral argument unless:
a) a written request is made therefor by the moving party, or any other party, which request shall be noted conspicuously in the writing, or
b) the Court directs the Assignment Commissioner to set such motion for oral argument.
2. Upon receipt of such request from counsel, and at such counsel's direction, the trial judge may make whatever disposition the judge feels is proper or may set the matter for oral argument.
3. Any party who may be adversely affected by such motion may file a memorandum opposing same and, if deemed necessary, the court may permit the filing of additional memoranda by any interested party.
4. If no request for oral argument is made by any interested party within ten days after the filing of such motion, the motion shall be considered by the assigned judge for decision.
5. Memoranda opposing any such motion shall be filed before the same is transmitted to the Court for decision. Leave shall be required for filing such memoranda after the motion has been transmitted to the Court.
6. If a decision on such motion has not been made within thirty days after transmittal thereof to the Court, any interested party may request the judge to set the case for decision on motion, who shall notify all counsel of record of such setting.
7. Any motion and memorandum which is not promptly served on opposing counsel after the filing thereof shall be subject to being stricken from the files.
8. To assure compliance with Civ. R. 56(C), depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence, and written stipulations of fact to support or oppose a motion for summary judgment shall be: (1) separately filed with the Clerk, or (2) if attached to the motion or memorandum, the caption shall so state, i.e. "...Including Affidavit of ________________________." Documents, which are not expressly mentioned in Civ. R. 56(C), shall be attached to an affidavit and filed. Failure to file any document as provided herein can result in its exclusion by the Court.

 

 

16 hours ago, Brotherskeeper said:

Did I understand correctly that the magistrate received a copy of Plaintiff's Response but the attorney appearing on behalf of Plaintiff had not received an official copy of the Response and requested a continuance? 

 

No, at the time of the hearing the Court had no record of the Plaintiff's Response. The Cincinnati attorney had a "sworn copy" provided to him via e-mail from the Columbus attorney who wrote it. And why he requested a continuance. As of yesterday the Case Documents had not been updated. Today, however, I see their Response has been filed and dated December 9.

 

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Am I still in a good position here? I feel like I need to amend my MTC for it's shortcomings, and also somehow address the Response. Thoughts? I have time to do it right.

MTC filed 11-19-19.pdf

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1 hour ago, ASatts said:

(B) Any memorandum contra to said motion shall be served upon movant's trial attorney within ten days from the date the memorandum in support of the motion and proof of service thereof, was served. Failure to serve and file a memorandum contra may be cause for the Court to grant the motion as served and filed. A reply memorandum may be served and filed within seven days of the service of the memorandum contra.

Looks like under local Rule 14(B) you don't need permission via a motion to file your Reply memorandum--as long as you do so within 7 days after service. So, the question I have is does the 7 days start from service to court or to you? 

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@ASatts It looks like your MTC is Fisthardcheese's basic template, but you did not include any Ohio case law or follow the Hamilton County rules. This may be why the magistrate remarked on your use of the Internet. Still, you quoted the US Supreme Court Concepcion as authority. 

1 hour ago, ASatts said:

(A) ALL motions shall be accompanied by a memorandum in support of the motion which shall be a brief statement of the grounds for the same, with citations of authorities relied upon, and (except in the case of an ex parte motion) proof of service in accordance with Civil Rule 5. All memoranda filed with a motion or in response thereto shall include page and document references for all factual assertions. 

 

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