cedric_86

Sued by Unifund for Barclays Bank card in Indiana

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2 hours ago, cedric_86 said:

I think receiving that big packet with MSJ and interrogatories made me panic.

Mission accomplished against a pro se defendant. 

2 hours ago, cedric_86 said:

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.

Your Answer contains a general denial and an Affirmative Defense that the court lacks subject matter jurisdiction due to an arbitration clause in the underlying contract that you choose to elect. (The facts stated here are your burden to prove.) It does not appear that you attached a sworn copy of the Barclay's agreement as an exhibit to your Answer. Your court rules may require that a copy of the contract be attached when a pleading (complaint or answer) relies on a written instrument. If you need to amend your Answer, this might be an area to focus on.

IANAL. It seems that your motion to compel arbitration includes a copy of the Barclay's agreement attached to an affidavit. This likely makes--as Fisthardcheese stated--your Answer less important than your pending MTC and your response in opposition to the MSJ. 

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57 minutes ago, Brotherskeeper said:
 

Mission accomplished against a pro se defendant. 

Your Answer contains a general denial and an Affirmative Defense that the court lacks subject matter jurisdiction due to an arbitration clause in the underlying contract that you choose to elect. (The facts stated here are your burden to prove.) It does not appear that you attached a sworn copy of the Barclay's agreement as an exhibit to your Answer. Your court rules may require that a copy of the contract be attached when a pleading (complaint or answer) relies on a written instrument. If you need to amend your Answer, this might be an area to focus on.

IANAL. It seems that your motion to compel arbitration includes a copy of the Barclay's agreement attached to an affidavit. This likely makes--as Fisthardcheese stated--your Answer less important than your pending MTC and your response in opposition to the MSJ. 

Yes. You are correct. I did not attach the card agreement to the Answer like I did the MTC.  Is that why they had that claim of no material?  It does look like I should have included it:  (B) Proof of execution of instruments filed with pleadings. When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith.

When I first found these boards I only had a couple days left to get my answer filed.  There is so much info on the boards and I went over all kinds of boards.  Probably too much information.  With the stressing of the short period of time and information overload. I missed some things.  I have more time to figure some things out and will work on the objection to MSJ.  I will keep looking on Google Scholar to find cases to back up my objection.

I appreciate your feedback.

 

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On 3/16/2020 at 9:01 PM, cedric_86 said:

  Is that why they had that claim of no material? 

No, it's a boilerplate template a busy law office uses for every single case.  You are reading too much into it.  The only things that matter here is a pending MSJ that needs to be properly responded to immediately, and your pending MTC which should be taking precedence and mentioned in your Opposition to MSJ as THE underlying reason MSJ should be denied and the main material issue for the court to handle.  Stop focusing on all of the tiny insignificant side issues before you lose the MSJ just like they have designed.

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Can someone provide feedback on my objection to MSJ. @Brotherskeeper @fisthardcheese @Harry Seawardobjection - affidavit.docx

 

I'm attaching the MSJ they filed so you can see if how I answered will possibly work.

I believe they state can't rely on pleadings only because I did not attach and affidavit, or the card agreement (written instrument), although, I attached it with my MTC.   But I can request an amendment if needed and include it.

I believe they sent the interrogatories in Word format on CD.  I have no computers with a CD drive anymore, and libraries are closed due to Stay in Place so I can't even get to a computer that may have one.  I will see if they can possibly email me the Word document.objection - affidavit.pdf

 

 

Unifund MSJ-redact.pdf

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1 hour ago, cedric_86 said:
 

Can someone provide feedback on my objection to MSJ. @Brotherskeeper @fisthardcheese @Harry Seawardobjection - affidavit.docx

 

I'm attaching the MSJ they filed so you can see if how I answered will possibly work.

I believe they state can't rely on pleadings only because I did not attach and affidavit, or the card agreement (written instrument), although, I attached it with my MTC.   But I can request an amendment if needed and include it.

I believe they sent the interrogatories in Word format on CD.  I have no computers with a CD drive anymore, and libraries are closed due to Stay in Place so I can't even get to a computer that may have one.  I will see if they can possibly email me the Word document.objection - affidavit.pdf

 

 

Unifund MSJ-redact.pdf 1.98 MB · 1 download

You did attach the agreement to your MTC?

If so, I would throw the language in the agreement along with AAA’s rules back on their face.

The following is stated in the credit card agreement:

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

(c)  YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT.

 

AAA’s Rules

R-2 . Starting Arbitration under an Arbitration Agreement in a Contract

(a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner:

(3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following:

• A copy of the court order

• A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document

• The proper filing fee

 

R-2 . Starting Arbitration under an Arbitration Agreement in a Contract

(a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner:

(3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following:

• A copy of the court order

• A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document

• The proper filing fee

Neither the arbitration provision in the credit card agreement or the rules of the American Arbitration Association (AAA) require that a case be filed with AAA case filing services before a filing a motion to compel arbitration.  In fact, it is stated in the Barclays credit card agreement that “You or we may elect arbitration under this arbitration provision with respect to any claim, even if the claim is part of a lawsuit brought in court.  You or we may make a motion or request in court to compel private arbitration of any claim brought as part of any lawsuit.”

As shown by the arbitration provision, arbitration may be pursued through a Motion to Compel in court.  It is not stated a case must first be filed with AAA.  

The following is Rule R-2(a)(3) of the AAA.

R-2 . Starting Arbitration under an Arbitration Agreement in a Contract

(a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner:

(3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following:

• A copy of the court order

• A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document

• The proper filing fee

The rule specifies that arbitration may be started “pursuant to a court order.”  As with the arbitration provision in the credit card agreement, there is no mention of filing a case with AAA before a court order can be issued.  Therefore, Defendant has complied with both AAA’s rule and the terms of the arbitration provision in the credit card agreement.

The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

Plaintiff has provided no evidence that AAA’s rules require a case to be filed with the arbitration forum prior to filing motion to compel arbitration with the court or before a court may rule on the motion.  

Wherefore, Defendant respectfully requests the Honorable Court grant Defendant’s Motion to Compel Arbitration and deny Plaintiff’s Motion for Judgment on the Pleadings or, in the alternative, Summary Judgment.  

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5 hours ago, BV80 said:

You did attach the agreement to your MTC?

If so, I would throw the language in the agreement along with AAA’s rules back on their face.

The following is stated in the credit card agreement:

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

(c)  YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT.

 

AAA’s Rules

R-2 . Starting Arbitration under an Arbitration Agreement in a Contract

(a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner:

(3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following:

• A copy of the court order

• A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document

• The proper filing fee

 

R-2 . Starting Arbitration under an Arbitration Agreement in a Contract

(a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner:

(3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following:

• A copy of the court order

• A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document

• The proper filing fee

Neither the arbitration provision in the credit card agreement or the rules of the American Arbitration Association (AAA) require that a case be filed with AAA case filing services before a filing a motion to compel arbitration.  In fact, it is stated in the Barclays credit card agreement that “You or we may elect arbitration under this arbitration provision with respect to any claim, even if the claim is part of a lawsuit brought in court.  You or we may make a motion or request in court to compel private arbitration of any claim brought as part of any lawsuit.”

As shown by the arbitration provision, arbitration may be pursued through a Motion to Compel in court.  It is not stated a case must first be filed with AAA.  

The following is Rule R-2(a)(3) of the AAA.

R-2 . Starting Arbitration under an Arbitration Agreement in a Contract

(a) Arbitration filed under an arbitration agreement naming the AAA shall be started in the following manner:

(3) If the arbitration is pursuant to a court order, the claimant must send one copy of the Demand to the AAA at the same time the Demand is sent to the respondent . When sending a demand to the AAA, the claimant must also send the following:

• A copy of the court order

• A copy of the arbitration agreement contained in the contract and/or

agreement and/or purchase document

• The proper filing fee

The rule specifies that arbitration may be started “pursuant to a court order.”  As with the arbitration provision in the credit card agreement, there is no mention of filing a case with AAA before a court order can be issued.  Therefore, Defendant has complied with both AAA’s rule and the terms of the arbitration provision in the credit card agreement.

The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

Plaintiff has provided no evidence that AAA’s rules require a case to be filed with the arbitration forum prior to filing motion to compel arbitration with the court or before a court may rule on the motion.  

Wherefore, Defendant respectfully requests the Honorable Court grant Defendant’s Motion to Compel Arbitration and deny Plaintiff’s Motion for Judgment on the Pleadings or, in the alternative, Summary Judgment.  

Great points.  Thanks so much.  I didn't think their reason of the arbitration was as hard to address as the genuine issue of material fact. But I appreciate these tips. :)

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46 minutes ago, cedric_86 said:

Great points.  Thanks so much.  I didn't think their reason of the arbitration was as hard to address as the genuine issue of material fact. But I appreciate these tips. :)

One of the issues of material fact is that you filed a timely motion to compel arbitration pursuant to the terms of the credit card agreement.  Point out that, in their motion, Unifund “does not dispute that Defendant may elect arbitration”.  Therefore, it’s only objection to your motion to compel is based upon its mistaken belief that you have not complied with AAA’s rules.   

See what your court requires for setting a hearing from your motion.  It should be heard before Unifund’s motion.  

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48 minutes ago, BV80 said:

One of the issues of material fact is that you filed a timely motion to compel arbitration pursuant to the terms of the credit card agreement.  Point out that, in their motion, Unifund “does not dispute that Defendant may elect arbitration”.  Therefore, it’s only objection to your motion to compel is based upon its mistaken belief that you have not complied with AAA’s rules.   

See what your court requires for setting a hearing from your motion.  It should be heard before Unifund’s motion.  

Ok.  I have called the courts twice and asked if I needed to schedule a hearing and they state that it is not needed and the judge will just make a decision. I will call again tomorrow..

I was just  wondering if I did something wrong and caused this issue because I didn't include the agreement with my answer.  (which I didn't learn until later) Referencing the RCP:

Proof of execution of instruments filed with pleadings. When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith. A denial asserting that another person who is not a party did execute the instrument, indorsement, or assignment may be made without such oath or affidavit only if the pleader alleges under oath or in an accompanying affidavit that after the exercise of reasonable diligence he was unable to make such person or his representative (subdivision (H)) a party, the reason therefor, and that he is without information as to such execution.

I guess that is my understanding of what they mean by a general denial doesn't work based on pleadings alone (like without an affidavit or such).  Which is why I thought I needed to amend the answer.  Also, I did not ask for a relief in the Answer.  I made a few mistakes.

 

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8 hours ago, cedric_86 said:

Ok.  I have called the courts twice and asked if I needed to schedule a hearing and they state that it is not needed and the judge will just make a decision. I will call again tomorrow..

I was just  wondering if I did something wrong and caused this issue because I didn't include the agreement with my answer.  (which I didn't learn until later) Referencing the RCP:

Proof of execution of instruments filed with pleadings. When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith. A denial asserting that another person who is not a party did execute the instrument, indorsement, or assignment may be made without such oath or affidavit only if the pleader alleges under oath or in an accompanying affidavit that after the exercise of reasonable diligence he was unable to make such person or his representative (subdivision (H)) a party, the reason therefor, and that he is without information as to such execution.

I guess that is my understanding of what they mean by a general denial doesn't work based on pleadings alone (like without an affidavit or such).  Which is why I thought I needed to amend the answer.  Also, I did not ask for a relief in the Answer.  I made a few mistakes.

 


The MSJ mentions T.R. 56(E).  Rule 56 is the Summary Judgment rule.  

(E)   Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.

 

All that means is that your response to the MSJ cannot rely on your general denial.  Now that an a MSJ has been filed, you have to do more than rely on your denial.  You have to set forth facts that show the judge there is an issue of material fact that prevents him from granting their motion.   I suppose you would include an affidavit.

A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-movant designates facts and evidence in response to the movant's motion. Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 203-04 (Ind.2003)

Unifund only claims you didn’t follow AAA’s rules.  They did not provide a rule that shows you are required to file a case with AAA and pay the filing fee in order for the court to issue an order to arbitrate.  Where is that rule they claim you didn’t follow?   As the moving party, Unifund has not met its burden of showing that there is no genuine issue of material fact that would preclude summary judgment in its favor.

You can provide the AAA rule that shows arbitration can be started AFTER receiving a court order to arbitrate.  That, in my opinion, is the genuine issue of material fact that does preclude summary judgment.  

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On 3/31/2020 at 8:33 AM, BV80 said:

 


The MSJ mentions T.R. 56(E).  Rule 56 is the Summary Judgment rule.  

(E)   Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.

 

All that means is that your response to the MSJ cannot rely on your general denial.  Now that an a MSJ has been filed, you have to do more than rely on your denial.  You have to set forth facts that show the judge there is an issue of material fact that prevents him from granting their motion.   I suppose you would include an affidavit.

A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-movant designates facts and evidence in response to the movant's motion. Tankersley v. Parkview Hosp., Inc., 791 N.E.2d 201, 203-04 (Ind.2003)

Unifund only claims you didn’t follow AAA’s rules.  They did not provide a rule that shows you are required to file a case with AAA and pay the filing fee in order for the court to issue an order to arbitrate.  Where is that rule they claim you didn’t follow?   As the moving party, Unifund has not met its burden of showing that there is no genuine issue of material fact that would preclude summary judgment in its favor.

You can provide the AAA rule that shows arbitration can be started AFTER receiving a court order to arbitrate.  That, in my opinion, is the genuine issue of material fact that does preclude summary judgment.  

Ok.  So this is just about the MSJ that they filed.  I was thinking it had something to do with my Answer.  So should, I include a copy of the AAA rules as an exhibit, as well as the originally submitted card agreement/affidavit?

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31 minutes ago, cedric_86 said:

Ok.  So this is just about the MSJ that they filed.  I was thinking it had something to do with my Answer.  So should, I include a copy of the AAA rules as an exhibit, as well as the originally submitted card agreement/affidavit?

That’s what I would do.

@Harry Seaward

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On 3/31/2020 at 8:33 AM, BV80 said:

 


The MSJ mentions T.R. 56(E).  Rule 56 is the Summary Judgment rule.  

(E)   Form of affidavits--Further testimony--Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.

 

All that means is that your response to the MSJ cannot rely on your general denial.  Now that an a MSJ has been filed, you have to do more than rely on your denial.  You have to set forth facts that show the judge there is an issue of material fact that prevents him from granting their motion.   I suppose you would include an affidavit.

A party moving for summary judgment bears the initial burden of showing no genuine issue of material fact and the appropriateness of judgment as a matter of law. If the movant fails to make this prima facie showing, then summary judgment is precluded regardless of whether the non-movant designates facts and evidence in response to the movant's motion. T 

Unifund only claims you didn’t follow AAA’s rules.  They did not provide a rule that shows you are required to file a case with AAA and pay the filing fee in order for the court to issue an order to arbitrate.  Where is that rule they claim you didn’t follow?   As the moving party, Unifund has not met its burden of showing that there is no genuine issue of material fact that would preclude summary judgment in its favor.

You can provide the AAA rule that shows arbitration can be started AFTER receiving a court order to arbitrate.  That, in my opinion, is the genuine issue of material fact that does preclude summary judgment.  

So, it appears the part about the Arbitration is just their response to the Motion to Compel that they combined in the same document as the MSJ.  So, the bigger issue is the fact that they say the general denial is not SUFFICIENT to raise a general issue of material fact.

I do not understand how they say in my Answer I failed to deny the allegations stated in the claim, when I gave a general denial and stated:   asserts a General Denial: I deny each of the Plaintiff’s allegations in the Complaint. 

 I tried looking for case law regarding arbitration clause being considered genuine issue of material fact, but not so lucky.

There is one count listed in the attached Affidavit of Debt, that the statements are based on personal knowledge and review of the business records of Barclays, which were maintained by them in regular course of business, and provided to client.  I'm not sure what documents or affidavit I could provide to object (since it can't be based solely on my denial)

I also noticed it has been 30 days and no ruling on my MTC (the court said no hearing needed).  There is a RCP about moving to Superior Court to have a special judge appointed.  Of course with the virus, courts are not fully operating and I can't get anyone on the phone.

I appreciate your help.

Additionally, I will submit my admissions and interrogatories and object due to pending MTC.  

(You should be able to see throughout this thread, my Answer, their response/MSJ, and my proposed Objection to MSJ)
 

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1 hour ago, Brotherskeeper said:

@cedric_86 What is your deadline to file your response to this MSJ? 

on the 6th of this month.  I'm trying to finish up today, as much as I can.

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@cedric_86 Plaintiff has combined into one document its Response to your motion to compel arbitration with its own Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment. (IANAL) You will actually be combining Defendant's Reply to Plaintiff's Response in opposition to your Motion to Compel with Defendant's Response in Opposition to Plaintiff's Motion for Judgment on the Pleadings, or in the Alternative, Motion for Summary Judgment. 

I don't know about Indiana rules, but in my state, a reply to a response in opposition to a motion does not re-argue what was presented in the original motion; it addresses an issue raised in the response. In your case, Unifund raises the AAA rules and confuses or conflates the Barclays agreement's use of "elect" with "commence," as I and BV80 covered in previous posts. Unifund does not dispute that you may elect arbitration. They don't appear to dispute that the sworn Barclays account agreement you attached to your motion affidavit is the governing contract. They don't dispute that they are bound by this agreement. (In fact, one of their Complaint counts is for breach of contract.) Unifund misinterprets and misstates the terms of the Barclays arbitration provision to claim you are required to take actions the agreement does not require. 

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Thank you @Brotherskeeper.  I can see what you're saying.

I think my biggest struggle is the MSJ part to argue against the Count 1 of Breach of Contract or whatever is needed to combat the charge of no genuine material fact. (Why would they just put 1 of the counts if there were 4 in the complaint).   Looks like they've dropped the other 3, as the affidavit was only for the 1 count.

If the arbitration clause is considered the 'material fact', I have not found any case law to back that up and actually since it can't be based on pleadings only, how would I handle this.  I considered the Affidavit of Debt could be a problem, just looking at various boards.

As I looked at other cases by this attorney, they use same tactic of no genuine material issue.  Discovery request filed a day before MSJ.  Then Motion to Deem Admitted/MSJ.

They sent me a CD with Discovery (Word).  I haven't had a computer with a CD for some years.  Office Max couldn't even open the CD, so I hope to have some lee-way from the court especially since the state is on stay at home orders.

 

 

 

 

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13 hours ago, cedric_86 said:

Thank you @Brotherskeeper.  I can see what you're saying.

I think my biggest struggle is the MSJ part to argue against the Count 1 of Breach of Contract or whatever is needed to combat the charge of no genuine material fact. (Why would they just put 1 of the counts if there were 4 in the complaint).   Looks like they've dropped the other 3, as the affidavit was only for the 1 count.

If the arbitration clause is considered the 'material fact', I have not found any case law to back that up and actually since it can't be based on pleadings only, how would I handle this.  I considered the Affidavit of Debt could be a problem, just looking at various boards.

As I looked at other cases by this attorney, they use same tactic of no genuine material issue.  Discovery request filed a day before MSJ.  Then Motion to Deem Admitted/MSJ.

They sent me a CD with Discovery (Word).  I haven't had a computer with a CD for some years.  Office Max couldn't even open the CD, so I hope to have some lee-way from the court especially since the state is on stay at home orders.

 

 

 

 

Yes, your motion to compel arbitration is a genuine issue of material fact.  Granting summary judgment is an adjudication on the merits of the case.  What you’re not understanding is that the court must decide your motion before it can decide on the MSJ.  Check you rules to determine when motions are to be heard.  

This is from the Federal Arbitration Act.

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." 9 U.S.C. § 3.

From the U.S. Supreme Court.

“The Act also provides that a court must stay its proceedings if it is satisfied that an issue before it is arbitrable under the agreement.” Shearson/American Express, Inc. v. McMahon, 482 U.S. 220, 225-27, 107 S.Ct. 2332, 96 L.Ed.2d 185 (1987).

The judge must stay the proceedings.  He does not have the right to adjudicate the plaintiff’s claims. If he were to grant the MSJ, he would be in conflict with the FAA and the Supreme Court   That is a genuine issue that prevents him from granting summary judgment.  

Are they claiming you waived the right to arbitrate?  If so, the IN Court of Appeals has ruled that the issue of waiver is to be determined by the arbitrator.  I’ll have to get back to you with case law on that.  


 

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@cedric_86, @BV80 From the Compelling and Staying Arbitration in Indiana white paper I posted on the first page of this thread:

THRESHOLD ISSUES FOR THE COURT TO DECIDE

When deciding an application to compel or stay arbitration the court plays a gatekeeping role that is limited to determining whether:

  •  The parties have a valid and enforceable arbitration agreement (see Valid Arbitration Agreement).
  •  The dispute falls within the scope of the parties’ arbitration agreement (see Scope of Arbitration Agreement).

(See Harlow v. Parkevich, 868 N.E.2d 822, 826 (Ind. Ct. App. 2007); Daimler Chrysler Corp. v. Franklin, 814 N.E.2d 281, 284-85 (Ind. Ct. App. 2004) (citing Mislenkov v. Accurate Metal Detinning, Inc., 743 N.E.2d 286, 289 (Ind. Ct. App. 2001)).)

The court may also determine whether the party seeking arbitration has waived its right to arbitrate by acting in a manner inconsistent with the right to arbitrate (see Waiver).

Indiana courts resolve every doubt in favor of arbitration (see Nightingale Home Healthcare, Inc. v. Helmuth, 15 N.E.3d 1080, 1085 (Ind. Ct. App. 2014)). However, the court may not compel arbitration by a party that did not agree to arbitrate the dispute (see Sanford v. Castleton Health Care Ctr., LLC, 813 N.E.2d 411, 416 (Ind. Ct. App. 2004)). Under the IUAA, once the court determines the parties contracted to submit their dispute to arbitration, the court must compel arbitration (Ind. Code § 34-57-2-3(a); see Daimler Chrysler, 814 N.E.2d at 285).

The arbitrator, not the court, resolves disputes about procedural preconditions to arbitration, such as delay or waiver of the contract containing the arbitration clause (see BG Grp., PLC v. Rep. of Argentina, 572 U.S. 25, 34-35 (2014)). Courts also leave the threshold arbitrability determinations to the arbitrator if the parties’ arbitration agreement clearly and unmistakably delegates these issues to the arbitrator (see Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 70-73 (2010))."

WAIVER

Under Indiana law, a party may waive its right to arbitrate a dispute that is otherwise arbitrable under a valid arbitration agreement. Even if a party does not waive arbitration in express terms, the court may find the party impliedly waived its right to arbitrate because of the party’s actions. (See Safety Nat. Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1004 (Ind. Ct. App. 2005).)

To find waiver, the court must find the party acted inconsistently with its right to arbitrate by engaging in court litigation (see MPACT Const. Grp., 802 N.E.2d at 910). The factors the court considers include:

  • The timing of the arbitration request.
  • The filing of any dispositive motions.
  • Whether the party seeking to arbitrate is unfairly manipulating the judicial system by attempting to obtain a second bite at the apple due to an unfavorable ruling in another forum (See Finlay Props., Inc. v. Hoosier Contracting, LLC, 802 N.E.2d 453, 455 (Ind. Ct. App. 2003).)
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@Brotherskeeper  Thanks so much.  You have been super helpful.

If the MTC is granted, does that supersede the MSJ and request for Discovery that was filed just 2 days later?

I also found out last night that IN has a lazy judge rule.  Found another user on the boards that had some dealings with that.

It has been over 30 days and the judge has not made any rulings on anything of mine or Plaintiffs. I called court twice and they said I did not need to schedule a hearing and that judge would just rule.  So there's a Trial 53.1 rule where I can file a praecipe, to request Supreme Court to assign a special judge.  Either that will motivate the current judge (it's been said he's not consumer friendly from other posters) or assigned to another judge who would hopefully just grant the MTC.  I'm looking up samples of those now to possibly file that by tomorrow.

Our state is on shutdown, and I have not been out of the house.  Unfortunately, I'll need to leave the house to have the Discovery notarized.

 

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2 hours ago, cedric_86 said:

If the MTC is granted, does that supersede the MSJ and request for Discovery that was filed just 2 days later?

Yes. If your motion to compel the plaintiff to arbitrate and stay the case is granted, the dispute must move by court order to arbitration. Whether or not the arbitration provision in the governing contract is valid and enforceable; and whether or not the dispute falls within the scope of the parties’ arbitration agreement, will determine if the court or the arbitrator has subject matter jurisdiction over the dispute. Who gets to hear and decide the disputes over this Barclays account is a material fact. Remember this from the the first page of this thread?

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)."'

Under your court rules, the plaintiff must have a certain amount of time to file a response to your your motion. The judge won't rule until the opposing side has had that opportunity. You may also have under your rules a time period in which to file a reply to their response. The judge has to have a reasonable amount of time to rule after giving the parties their chance to respond. The shutdown is a factor that has to be considered as well. 

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2 hours ago, cedric_86 said:

If the MTC is granted, does that supersede the MSJ and request for Discovery that was filed just 2 days later?

Along with what was stated by @Brotherskeeper, it’s what @fisthardcheese stated, as well.

On 3/24/2020 at 6:49 AM, fisthardcheese said:

No, it's a boilerplate template a busy law office uses for every single case.  You are reading too much into it.  The only things that matter here is a pending MSJ that needs to be properly responded to immediately, and your pending MTC which should be taking precedence and mentioned in your Opposition to MSJ as THE underlying reason MSJ should be denied and the main material issue for the court to handle.  Stop focusing on all of the tiny insignificant side issues before you lose the MSJ just like they have designed.

 

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I just wanted to say thanks to those who really helped me out with your input.  I really appreciated it.  @BV80, @Brotherskeeper @fisthardcheese @Harry Seaward

Everything has been turned in. Waiting to hear back from the court about ruling on the MTC.  I had to handwrite the answers to the requested discovery because the CD with Word version would not open.

It seems like I've seen somewhere on these boards about a document you file/serve after submitting the Request for Admissions, Interrogatories, Produce Documents.  What is that document called?  Is it required?

Thanks

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Certificate of service. You file it with the court and send a copy to opposing. I don't know if it's "required" (probably is) but that's your proof to the court that you responded to their requests, in the event Unifund doesn't receive it. 

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1 hour ago, Harry Seaward said:
 
 

Certificate of service. You file it with the court and send a copy to opposing. I don't know if it's "required" (probably is) but that's your proof to the court that you responded to their requests, in the event Unifund doesn't receive it. 

Thanks. I had to email the response and attorney acknowledged receipt.  It seems like I saw something like a document called Notice of Compliance.

I haven't been able to get any info regarding the case because of partial court shutdown.  But, I just found an email address for the court so hopefully, I'll be able to check on my case now.

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REPLY TO DEFENDANT’S RESPONSE IN  OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY DEFENDANT DISPOSITION

This attorney is not going down without a fight.  It appears she is arguing about jurisdiction but not subject matter jurisdiction.  She's also holding to me not demanding the arbitration.  Do I need to just file with AAA?  If so, can I have them pay in order for me to initiate with this clause:  We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator

 

@Brotherskeeper @BV80

Response to MSJ opposition.pdf

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