cedric_86

Sued by Unifund for Barclays Bank card in Indiana

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I was served papers of being sued in local court with Unifund as Plaintiff for debt bought from Barclay Bank Delaware credit card.  We are in process of trying to buy a home so we don't want any hiccups. Currently there is nothing on my credit reports.  I recall some collection calls from different companies but never Unifund.  This is the first I'm hearing of them.  I need to know what I can do.  I saw some posts about an arbitration agreement but do not understand that.

Currently going through cancer treatment so really don't even want to deal with this, or have extra funds to hire lawyer.  Have done some of my own credit repair so credit reports don't look bad.  This is currently not on my credit report and I don't want it to end up there. 

Is Unifund a tough cookie to crack?  I could use some help/advice. How do I start with an Answer?  Do I need to request arbitration with my response?

Thanks

Here is additional info:

1. Who is the named plaintiff in the suit?

Unifund CCR, LLC

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

 No law firm.  I only see the name of the attorney for the plaintiff, who has an Unifund email, who has provided her Indiana attorney ID#

3. How much are you being sued for?

$2464

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

Barclays Bank Delaware

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

Served at home by sheriff. 

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

My husband received it. 

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

Process Service Requirements by State - Summons Complaint

In General. Service may be made upon an individual, or an individual acting in a representative capacity, by:

  1. sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or
  2. delivering a copy of the summons and complaint to him personally; or
  3. sending a copy of the summons and complaint by registered or certified mail or other public means by which a written acknowledgment of receipt may be requested and obtained to his residence, place of business or employment with return receipt requested and returned showing receipt of the letter; or
  4. serving his agent as provided by rule, statute or valid agreement
  1. 8. What was your correspondence (if any) with the people suing you before you think you were being sued?  None.

9. What state and county do you live in?

Marion County, Indiana

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

9/12/2017 to original creditor (although bill of sale for next company was 3/24/2017)

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

Indiana is 6 years

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

status is pending (active) / service returned served on 1/24/2020

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  not listed on credit report

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No. Haven't received anything from this company.

15. 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 20 days to respond from (1/24/2020 date). Did not receive questionnaire regarding lawsuit.

There are 4 counts - breach of contract, account stated, promissory estoppel, unjust enrichment. 

  16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

  • Affidavit of Debt - stating Unifund is successor in interest to Barclays, gives balance, and that type is credit card, 8% interest after judgement, but not seeking attorney's fees.
  • Bill of Sale - Barclays Bank Delaware Bank and First Bank & Trust - 3/24/2017
  • Certification - undersigned serving as VP of First Bank & Trust (Seller) have been sold and transferred to Credit Shop, Incorp (Buyer) a Delaware corp and affiliate of CreditShop Receivables, LLC, pursuant to certain Receivables Sales Agreement dated as of 3/24/27.  Includes Exhibit A
  • Certification of Receivables Sales - On November 9, 2017 the Receivables set forth on Exhibit A were assigned and transferred from Credit Shop, Inc to CreditShop LLC through a series of distribution and of such Receivables among affiliates of Credit Shop Inc and CreditShop LLC.
  • Bill of Sale dated 4/4/2018 - CreditShop Receivables, LLC, a Delaware limited liability company (The Seller) to Distressed Asset Portfolio III, LLC, with principal address in Ohio (Buyer).  Value received and subject to terms and conditions of Purchase and Sale Agreement dated as of 3/13/2018 between Buyer and Seller (The Agreement) The seller transfers..
  • Assignment - is effective as of 4/4/2018 between Distressed Asset Portfolio III, LLC, an OH limited liability company (Assignor) and Unifund CCR LLC, an OH limited liability company (Assignee)
  • computer printout - with account ope/last statement date. Date sold, charge off date, balance and my address info
  • Copy of 4 pg credit card statement dated 7/28/2017 with statement balance of $2712.71

 

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Does this statement mean that I would be responsible for their arbitration fees?  If so, arbitration would not be best for me in this situation?

This was included in the Debt/Collection section and not the Arbitration section of the agreement.

As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account)

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AAA rules expressly prohibit arbitration fee shifting to the consumer.  JAMS rules may as well, but we had a member here that used JAMS get stuck with the JDBs fees and then had to appeal that ruling.  That person never came back to update us on what happened, and I tend to err on the side of caution.  The one drawback with AAA is that their fees for the JDB can be considerably less than with JAMS, so AAA may have less of a deterrent effect than if you were to use JAMS.

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5 hours ago, Harry Seaward said:

AAA rules expressly prohibit arbitration fee shifting to the consumer.  JAMS rules may as well, but we had a member here that used JAMS get stuck with the JDBs fees and then had to appeal that ruling.  That person never came back to update us on what happened, and I tend to err on the side of caution.  The one drawback with AAA is that their fees for the JDB can be considerably less than with JAMS, so AAA may have less of a deterrent effect than if you were to use JAMS.

FYI  here's what Jams says about fees (from their minimum standards of procedural fairness)

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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14 minutes ago, Impress said:

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 a consumer initiates arbitration" defines the period of time for the limitation on fees. Nothing here expressly says, or precludes, an arbitrator from reallocating the fees back to the consumer at the conclusion. This is what Discover argued, and won, as was discussed in this thread:

https://www.creditinfocenter.com/community/topic/329687-arbitration-award-costs-and-appeal/#comments

In contrast, here are the AAA rules on the same subject. 

"Arbitrator compensation, expenses as defined in sections (v) and (vii) below, and administrative fees (which include Filing and Hearing Fees) are not subject to reallocation by the arbitrator(s) except as may be required by applicable law or 
upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous."

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So, here is what I have come up with based on the different boards I have seen.  Can someone take a look and give me feedback.  I do have a few questions as well.

I still have a question about giving notice to the plaintiff about my arbitration intentions.  Is this required by the arbitrator, or by who?  If I've stated in my answer that I am electing arbitration, does that count.? I've seen where people have sent notification by email (CMMRR).  We efile here, and according to our RCP regarding arb,  it gives the statement: the requirement of notice is satisfied by service of the motion.

Is the affidavit on regarding the credit agreement.  I've seen template where it talks about verifying that notification was mailed to plaintiff.  I do not see how that works here, if I get it notarized before efiling.  I can mail copy afterwards?

I put everything in same document for now, but know to separate them.  I have attached the document.

Thanks.

 

@fisthardcheese @noni2four

 

 

Unifund Arbitration.docx

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On 2/21/2020 at 7:49 PM, cedric_86 said:

I still have a question about giving notice to the plaintiff about my arbitration intentions.  Is this required by the arbitrator, or by who?  If I've stated in my answer that I am electing arbitration, does that count.? I've seen where people have sent notification by email (CMMRR)

No prior notice is required once they have sued you. All notice is through court documents.  Some have interpreted certain state's laws as notice is required prior to using arbitration, so it is in the template to err on the side of caution.   Just use your efile system for everything.  If the court states that this satisfies the requirement of notice for your answer and motion, then that satisfies the requirement.

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What's next?  I filed answer and MTC (2 wks later on 3/2)  by e-file.  Originally, I did not send notification of Unifund of request for arbitration because it was in the answer and MTC that they were served. I later emailed and planned to mail letter directly to them.  A couple of days later, I received a barely closed envelope with no return address and metered stamp.  It had a copy of my filed answer and info about arbitration rules with parts highlighted.  I called court and they said they did not send it.

On 3/4 online shows Service returned served.  What was served?  The document has NOTICE OF SERVICE OF VS. PLAINTIFF'S FIRST SET OF xxx INTERROGATORIES, REQUESTS FOR PRODUCTION AND REQUESTS DEFENDANT FOR ADMISSION DIRECTED TO DEFENDANT.  

On 3/6 a MSJ was filed.  PLAINTIFF’S MOTION xxx MEMORANDUM FOR JUDGMENT 0N THE PLEADINGS 0R IN THE ALTERNATIvE SUMMARY JUDGEMENT

Goes on to say:  Now comes the Plaintiff, and moves this Court to enter Judgment on the Pleadings against the Defendant xx, pursuant to Ind. T.R. 12(C), there being no genuine issue as to any material fact, in that the Defendant has submitted an Answer denying the operative allegations therein.

Unifund now moves for summary judgment in its favor. Once the moving party has moved for summary judgment, the adverse party “may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits 01' as otherwise provided in this rule, must set forth specific facts showing that there is genuine issue for tria .” T.R. 56(E); See also id.; Farm Bureau Insurance C0. v. Allstate Insurance Col, 765 N.E.2d 651, 654 (Ct. App. 2002).

The Court may consider only those portions of the pleadings, depositions, and any other matters specifically designated by the parties for the purposes 0f the motion. City ofMishawaka, 810 N.E.2d at 1132. mere general denial is not sufficient to raise genuine issue of material fact. Nor may the Defendant rely on the pleadings alone to create an issue of fact if that Defendant has not made some showing that genuine issue of fact exists. Whipple v. Dickey, 401 N.E.2d 787 (1nd. 1980); Duran, 49o N.E.2d at 388.

In this case, the Defendant failed to deny the allegations stated in Plaintiff’s Complaint, Plaintiff is entitled to judgment based 0n the pleadings. Furthermore, because there are no genuine issues of material fact, Plaintiff is entitled to summary judgment. ( I did a general denial - they had 34 separate paragraphs)

*They also state that I did not comply with Arbitration rules.  Also, in this document in the conclusion, they list a different person's name.  I'm sure this is a template they use.  They also submitted a designation of evidence.

All of this has happened in just a few days.  I stated the online process for arbitration (didn't complete)  but thought I needed to wait until I had a judgement.  The court told me judge had been on vacation and would take a couple of weeks to get caught up.

What did I mess up?  What do I do now?

 @Harry Seaward   @fisthardcheese

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File an Opposition to their Motion for Summary Judgement.  In your opposition, refute all the points they made.  State that you DID deny all of their allegatiosn in your answer on XX date.  State that there IS a genuine dispute, mainly that THIS COURT HAS NO JURISDICTION as outlined in your pending Motion To Compel Arbitration.

In your prayer for relief ask that the judge deny their Summary Judgement and Grant your Pending Motion to Compel Arbitration before this court.

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On 3/11/2020 at 6:30 AM, fisthardcheese said:

File an Opposition to their Motion for Summary Judgement.  In your opposition, refute all the points they made.  State that you DID deny all of their allegatiosn in your answer on XX date.  State that there IS a genuine dispute, mainly that THIS COURT HAS NO JURISDICTION as outlined in your pending Motion To Compel Arbitration.

In your prayer for relief ask that the judge deny their Summary Judgement and Grant your Pending Motion to Compel Arbitration before this court.

Can you look over my original Answer.  I'm wondering if I should have actually numbered each 34 paragraphs and done some "not enough information to admit or deny" instead of general denial, as that is what they seem to contest and stating a general denial is not sufficient to raise a genuine issue of material fact.  I'm considering amending the Answer, as I have 30 days to do so (as I just learned, which would be today).  If I do an amended Answer, can I respond to some of the things brought up with attachments provided by MSJ.  I noticed the account number on the complaint and MSJ are different than the one they provided on the copies of statements.  I wonder if that is enough to even dismiss.

Here is what my state's RCP says regarding Pleadings:

Defenses: Form of denials. A responsive pleading shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or controvert the averments set forth in the preceding pleading. If in good faith the pleader intends to deny all the averments in the preceding pleading, he may do so by general denial subject to the provisions of Rule 11. If he does not intend a general denial, he may:

(1) specifically deny designated averments or paragraphs; or

(2) generally deny all averments except such designated averments and paragraphs as he expressly admits.

If he lacks knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and his statement shall be considered a denial. If in good faith a pleader intends to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and deny the remainder. All denials shall fairly meet the substance of the averments denied. This rule shall have no application to uncontested actions for divorce, or to answers required to be filed by clerks or guardians ad litem.

Unifund Answer - redact.docx

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Also, since they stated in MSJ that I elected ARB but provides no evidence of complying with rules, should I file or still wait until ruling on MTC?

They filled MSJ 2 days after I filed MTC, so to me it hasn't even been enough time to say I didn't comply.

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11 hours ago, cedric_86 said:

Yes? From what I've skimmed so far, you're entitiled to file a general denial answer and you asserted the affirmative defense of arb in it. Fisthardcheese advised how to respond to the MSJ. Check your rules of civil procedure to make certain you follow them. I am not a lawyer, but it would seem a properly drafted, filed and scheduled motion to compel arbitration is a material fact to defeat the MSJ. Can you please post the arbitration clause from the credit card agreement?

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4 hours ago, Brotherskeeper said:

Yes? From what I've skimmed so far, you're entitiled to file a general denial answer and you asserted the affirmative defense of arb in it. Fisthardcheese advised how to respond to the MSJ. Check your rules of civil procedure to make certain you follow them. I am not a lawyer, but it would seem a properly drafted, filed and scheduled motion to compel arbitration is a material fact to defeat the MSJ. Can you please post the arbitration clause from the credit card agreement?

I've attached the Barclay's card agreement.

image.png

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5 hours ago, Brotherskeeper said:

Yes? From what I've skimmed so far, you're entitiled to file a general denial answer and you asserted the affirmative defense of arb in it. Fisthardcheese advised how to respond to the MSJ. Check your rules of civil procedure to make certain you follow them. I am not a lawyer, but it would seem a properly drafted, filed and scheduled motion to compel arbitration is a material fact to defeat the MSJ. Can you please post the arbitration clause from the credit card agreement?

 

Barclays Arbitration.docx

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5 hours ago, Harry Seaward said:

@cedric_86 can you give a cliffs notes recap of your questions?  

  • According to MSJ they state I have not filed AAA and didn't take steps to elect ARB. I was waiting on court order.  I should have asked that JDB pay fees in the order, but I wasn't thinking. Should I have filed?  Or wait until Court Order?  They filed MSJ just 3 days after I filed MTC.  Doesn't seem like much time to comply.  I emailed letter electing Arb, but felt the MTC served to them also show election.
  •  
  • MSJ also states that general denial is not sufficient to raise genuine issue of material fact. Defendant hasn't made showing that a genuine issue of fact exists. The Defendant failed to deny the allegations stated in complaint. I believe this may be because I didn't submit a Memorandum and Points which I later found needs to be submitted.  You can see the original Answer I filed earlier in the thread.  Would I need to amend my Answer and make these changes?  I also forgot to make request from court. Or does it not matter because the Arb clauses removes it from court? I may have added the memorandum and points to the MTC.  I'm attaching so you can tell me if I did that wrong.

           I do plan on filing objection to MSJ but not sure how to respond to the part about it not being material fact.

          Cases they used:  Burcham v Stinger, 277 N.E.2d 814, 816;  Whipple v Dickey, 401 N.E.2d 787

 

 

 

  

 

Unifund Arbitration-redact.docx

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@cedric_86 The Barclay's arb provision you linked to states:

"If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before the commencement of trial."

This Barclay's agreement uses the terms "elected" and "commence" for arbitration. The above quoted term does not require you to "commence" arbitration if a claim is brought in court; it states that you may "elect" arb instead, and do not waive your right to "elect" any time before commencement of trial.

 In your Answer's Affirmative Defenses section you explicitly notified plaintiff that you have elected to exercise your contractual and binding right to arbitration instead of court. At that point upon receipt of your Answer, plaintiff could have dismissed its court action. And, upon receipt of your motion to compel them to arbitrate the disputes, plaintiff could have stipulated to the motion's proposed order. Instead, they are opposing your motion. Why would you actually "commence" arbitration of these disputes with a court case ongoing that hasn't been stayed yet?

"AFFIRMATIVE DEFENSES

Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”.

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@cedric_86 Here is an attorney practice note with helpful info:

Compelling and Staying Arbitration in Indiana

"Venue

When there is already an action pending between the parties, for example because a party started an action over an arbitrable dispute, the party seeking to compel arbitration must file the application as a motion in the already pending action (Ind. Code § 34-57-2-3(c))."

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I would file a motion for an extension of time to respond to the MSJ on the grounds that you are waiting on the court to rule on your MTC, which if granted would render the MSJ moot.  In your motion, I would cite whatever state statute provides that the proceedings are stayed until the court rules on your MTC.

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2 hours ago, Harry Seaward said:

I would file a motion for an extension of time to respond to the MSJ on the grounds that you are waiting on the court to rule on your MTC, which if granted would render the MSJ moot.  In your motion, I would cite whatever state statute provides that the proceedings are stayed until the court rules on your MTC.

So no need to amend the original Answer submitted?  After thinking about it, my answers would have to be different since they filed the MSJ they sent Interrogatories, and added more statements as evidence.  They also  to sent a CD titled "discovery".  I don't have a desktop or laptop that has a CD drive anymore. (Haven't had one for years). LOL

So, file for extension to respond to MSJ, instead of responding to the MSJ stating something like?

Objection" to every question due to the arbitration clause making Court not the proper jurisdiction.

 General objection - discovery is improper at this time due to a motion before the court.

Objection, defendant has exercised her right to utilize arbitration as the forum to resolve plaintiffs claims, and responding to this discovery request may constitute a waiver of that right 

 

 

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On 3/13/2020 at 10:11 PM, cedric_86 said:

According to MSJ they state I have not filed AAA and didn't take steps to elect ARB. I was waiting on court order.

So?  Seems like I would respond to this baseless and factually incorrect claim in my opposition to MSJ.

On 3/13/2020 at 10:11 PM, cedric_86 said:

 I should have asked that JDB pay fees in the order, but I wasn't thinking

No you shouldn't have.  That is an arbitration procedural issue. The court doesn't care.

On 3/13/2020 at 10:11 PM, cedric_86 said:

Should I have filed?

No

On 3/13/2020 at 10:11 PM, cedric_86 said:

They filed MSJ just 3 days after I filed MTC.  Doesn't seem like much time to comply.  I emailed letter electing Arb, but felt the MTC served to them also show election

uh huh.

On 3/13/2020 at 10:11 PM, cedric_86 said:

MSJ also states that general denial is not sufficient to raise genuine issue of material fact. Defendant hasn't made showing that a genuine issue of fact exists. The Defendant failed to deny the allegations stated in complaint. I believe this may be because I didn't submit a Memorandum and Points which I later found needs to be submitted

I've never heard of a Memorandum and Point to be required with an answer.  You are hung up on the answer which is far in the past at this point.

On 3/13/2020 at 10:11 PM, cedric_86 said:

Would I need to amend my Answer and make these changes?  I also forgot to make request from court. Or does it not matter because the Arb clauses removes it from court? I may have added the memorandum and points to the MTC.  I'm attaching so you can tell me if I did that wrong.

You tell us.  You don't know what you filed with your MTC?  You don't know your court's rules?

On 3/13/2020 at 10:11 PM, cedric_86 said:

   I do plan on filing objection to MSJ but not sure how to respond to the part about it not being material fact.

Asked and answered.

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On 3/13/2020 at 10:11 PM, cedric_86 said:

I do plan on filing objection to MSJ but not sure how to respond to the part about it not being material fact.

This Indiana Supreme Court case has been cited 467 times according to Google Scholar: 

Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014).

'" . . . .Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009) (quoting T.R. 56(C)). "A fact is `material' if its resolution would affect the outcome of the case, and an issue is `genuine' if a trier of fact is required to resolve the parties' differing accounts of the truth, or if the undisputed material facts support conflicting reasonable inferences." Id. (internal citations omitted)."'

 

INDY AUTO MAN, LLC v. KEOWN & KRATZ, LLC, 114 NE 3d 32 - Ind: Court of Appeals 2018

"Goodwin v. Yeakle's Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016). Our Supreme Court has cautioned that "[a]s long as competent evidence has been designated in response to a summary judgment motion, ... `weighing [the evidence] —no matter how decisively the scales may seem to tip—[is] a matter for trial, not summary judgment.'" Stafford v. Szymanowski, 31 N.E.3d 959, 963 (Ind. 2015) (quoting Hughley v. State, 15 N.E.3d 1000, 1005-06 (Ind. 2014)). In other words, if any weighing of evidence—of the facts— is required, then summary judgment is inappropriate."

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9 hours ago, fisthardcheese said:

So?  Seems like I would respond to this baseless and factually incorrect claim in my opposition to MSJ.

No you shouldn't have.  That is an arbitration procedural issue. The court doesn't care.

No

uh huh.

I've never heard of a Memorandum and Point to be required with an answer.  You are hung up on the answer which is far in the past at this point.

You tell us.  You don't know what you filed with your MTC?  You don't know your court's rules?

Asked and answered.

Thanks. I appreciate your feedback.  I think receiving that big packet with MSJ and interrogatories made me panic.  I felt since they stated the Answer caused problems, that maybe I could amend the Answer to address the 'problem' with the issue of material fact.

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