cedric_86

Sued by Unifund for Barclays Bank card in Indiana

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4 hours ago, cedric_86 said:
 

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 1.31 MB · 1 download

I’ve had my doubts in the past about a court lacking subject matter jurisdiction when filing a MTC arbitration.  I didn’t realize you made that claim, but that’s neither here nor there.

The point is that you have shown that a valid arbitration agreement exists.  It is now on the plaintiff to prove you have waived your right to arbitration.  

The plaintiff quotes R-2(a) of the AAA rules.  They actually mislabeled it.  It is R-2(a)(1).  You would be filing according to R-2(a)(3).

(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

Notice that it says “When sending a demand to the AAA, the claimant must also send the following”.   It then includes the court order.  

The word “demand” is important.  

Look at R-2(a)(1).  It states “The Demand must do the following:”.  It then states what the “demand” must include.  

In other words, R-2(a)(1) is a separate “demand” from R-2(a)(3).  R-2(a)(1) is the requirement for a demand when there is not a court order.    R-2(a)(3) is the requirement for a demand made pursuant to a court order.  That is why a copy of a court order must be included with the demand.  

Indiana Uniform Arbitration Act

IC 34-57-2-2

Sec. 2. Arbitration shall be initiated by a written notice by either party, mailed by registered or certified mail, or delivered to the other party, briefly stating a claim, the grounds for the claim and the amount or amounts. Issues shall be joined by written notice of admissions or denials and any counterclaims or set-offs so mailed or delivered. The statutes of limitations ceases to run from the time of any notice of claim or counterclaim.

[Pre-1998 Recodification Citation: 34-4-2-2.]

Notice that in the sur reply, the plaintiff cites 34-4-2-2.  That is the repealed section number   The current section number was not referenced   

Under the Indiana Uniform Arbitration Act, 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);

IC 34-57-2-3

Order to commence arbitration; stay of arbitration proceedings; procedure

     Sec. 3. (a) On application of a party showing an agreement described in section 1 of this chapter, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration.

Once the court is satisfied that the parties contracted to submit their dispute to arbitration, the court is required by statute to compel arbitration. dismissed.  Daimler Chrysler Corp., v. Franklin, 814 N.E.2d 281, 285-86 (Ind. Ct. App. 2004).

Neither the IUAA or Indiana Court of Appeals mention that an arbitration claim must be filed before a Motion to Compel can be issued.  The plaintiff has yet to provide any evidence or court precedent that shows you must file a claim before the judge can rule on your MTC   The plaintiff has made that claim, so where is its proof?

Now, for the Supreme Court of the United States.  Their objection to arbitration is that you failed to follow proper procedure.  You allegedly failed to comply with the rules of the AAA and the Indiana Uniform Arbitration Act.  We know you followed the AAA rules, but if the idiot attorney is too stupid (or crooked) to understand and insists you didn’t follow proper procedure, here is what I would include.

The U.S. Supreme Court had ruled that arbitrators, not courts, decide procedural preconditions to arbitration.  

[C]ourts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration.  BG Group, PLC v. Republic of Argentina, 134 S. Ct. 1198, 1207 (2014). See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 86, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (courts assume parties "normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters").  See also  John Wiley & Sons v. Livingston, 376 U.S. 543, 556, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964)(holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration).

 

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2 hours ago, BV80 said:
 

I’ve had my doubts in the past about a court lacking subject matter jurisdiction when filing a MTC arbitration.  I didn’t realize you made that claim, but that’s neither here nor there.

The point is that you have shown that a valid arbitration agreement exists.  It is now on the plaintiff to prove you have waived your right to arbitration.  

The plaintiff quotes R-2(a) of the AAA rules.  They actually mislabeled it.  It is R-2(a)(1).  You would be filing according to R-2(a)(3).

(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

Notice that it says “When sending a demand to the AAA, the claimant must also send the following”.   It then includes the court order.  

The word “demand” is important.  

Look at R-2(a)(1).  It states “The Demand must do the following:”.  It then states what the “demand” must include.  

In other words, R-2(a)(1) is a separate “demand” from R-2(a)(3).  R-2(a)(1) is the requirement for a demand when there is not a court order.    R-2(a)(3) is the requirement for a demand made pursuant to a court order.  That is why a copy of a court order must be included with the demand.  

Indiana Uniform Arbitration Act

IC 34-57-2-2

Sec. 2. Arbitration shall be initiated by a written notice by either party, mailed by registered or certified mail, or delivered to the other party, briefly stating a claim, the grounds for the claim and the amount or amounts. Issues shall be joined by written notice of admissions or denials and any counterclaims or set-offs so mailed or delivered. The statutes of limitations ceases to run from the time of any notice of claim or counterclaim.

[Pre-1998 Recodification Citation: 34-4-2-2.]

Notice that in the sur reply, the plaintiff cites 34-4-2-2.  That is the repealed section number   The current section number was not referenced   

Under the Indiana Uniform Arbitration Act, 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);

IC 34-57-2-3

Order to commence arbitration; stay of arbitration proceedings; procedure

     Sec. 3. (a) On application of a party showing an agreement described in section 1 of this chapter, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration.

Once the court is satisfied that the parties contracted to submit their dispute to arbitration, the court is required by statute to compel arbitration. dismissed.  Daimler Chrysler Corp., v. Franklin, 814 N.E.2d 281, 285-86 (Ind. Ct. App. 2004).

Neither the IUAA or Indiana Court of Appeals mention that an arbitration claim must be filed before a Motion to Compel can be issued.  The plaintiff has yet to provide any evidence or court precedent that shows you must file a claim before the judge can rule on your MTC   The plaintiff has made that claim, so where is its proof?

Now, for the Supreme Court of the United States.  Their objection to arbitration is that you failed to follow proper procedure.  You allegedly failed to comply with the rules of the AAA and the Indiana Uniform Arbitration Act.  We know you followed the AAA rules, but if the idiot attorney is too stupid (or crooked) to understand and insists you didn’t follow proper procedure, here is what I would include.

The U.S. Supreme Court had ruled that arbitrators, not courts, decide procedural preconditions to arbitration.  

[C]ourts presume that the parties intend arbitrators, not courts, to decide disputes about the meaning and application of particular procedural preconditions for the use of arbitration.  BG Group, PLC v. Republic of Argentina, 134 S. Ct. 1198, 1207 (2014). See Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 86, 123 S.Ct. 588, 154 L.Ed.2d 491 (2002) (courts assume parties "normally expect a forum-based decisionmaker to decide forum-specific procedural gateway matters").  See also  John Wiley & Sons v. Livingston, 376 U.S. 543, 556, 84 S.Ct. 909, 918, 11 L.Ed.2d 898 (1964)(holding that an arbitrator should decide whether the first two steps of a grievance procedure were completed, where these steps are prerequisites to arbitration).

 

I do not understand why the attorney keeps going there about the Arbitration.  Unless she's just trying to throw me off and discourage me.  These are some of the same points I made in my reply to the MSJ.

Now, this is a new argument that they are bringing up for the 1st time, about the court retaining subject matter jurisdiction.  I'm trying to read through some of the cases she posted.

Are there other locations to find support other than google scholar?

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2 hours ago, cedric_86 said:

I do not understand why the attorney keeps going there about the Arbitration.  Unless she's just trying to throw me off and discourage me.  These are some of the same points I made in my reply to the MSJ.

Now, this is a new argument that they are bringing up for the 1st time, about the court retaining subject matter jurisdiction.  I'm trying to read through some of the cases she posted.

Are there other locations to find support other than google scholar?

Even if the court has subject matter jurisdiction, it does not mean the arbitration provision cannot be enforced.  Subject matter jurisdiction simply means that a court has the power to hear and determine certain types of claims.  For instance, You would not file a breach of contract claim for a credit card debt in family court.  That court would not be able to hear and decide the merits of that case.  Therefore, it would not have subject matter jurisdiction.

What does matter is what the law says about the right to arbitrate when a valid provision exists and when you have not waived that right. 

You can do a search of opinions on the Indiana court website.    @fisthardcheese

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@BV80  What are your thoughts on asking Unifund to pay the arbitration fees 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.  Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings.  Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.   In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court.  If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request. 

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1 hour ago, cedric_86 said:
 

@BV80  What are your thoughts on asking Unifund to pay the arbitration fees 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.  Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings.  Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.   In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court.  If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request. 

I would.  

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1 minute ago, BV80 said:

I would.  

So, since they are hung up on me not starting the filing, just tell them that I would gladly file with AAA if they would pay the filing fee as stated in the arb clause? File online with AAA and send the demand application with my response and ask them  to pay the filing fee.  That should be enough to leave that issue alone. 

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36 minutes ago, cedric_86 said:

So, since they are hung up on me not starting the filing, just tell them that I would gladly file with AAA if they would pay the filing fee as stated in the arb clause? File online with AAA and send the demand application with my response and ask them  to pay the filing fee.  That should be enough to leave that issue alone. 

Let’s see if @fisthardcheese or @Harry Seaward have any suggestions.

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14 hours ago, cedric_86 said:

I do not understand why the attorney keeps going there about the Arbitration.  Unless she's just trying to throw me off and discourage me.  These are some of the same points I made in my reply to the MSJ.

Plaintiff's attorney here is filing a motion response and sur-reply to further an argument to persuade the judge that your motion to compel arbitration should be denied. Unifund could have dismissed its case immediately upon reading your Answer's Affirmative Defense to the Complaint and moved to AAA. Unifund does not wish to go arb and wants to remain in court and have its MSJ granted. 

 

2 hours ago, cedric_86 said:

So, since they are hung up on me not starting the filing, just tell them that I would gladly file with AAA if they would pay the filing fee as stated in the arb clause? File online with AAA and send the demand application with my response and ask them  to pay the filing fee.  That should be enough to leave that issue alone. 

You have a pending Motion before the court to compel Unifund to arbitrate the claims. Plaintiff is allowed to file a Response in opposition to your Motion. Your court rules allow you (I assume since you filed one) to file a Reply to the Response. Plaintiff has filed a Sur-Reply. The judge will consider all these Motion papers filed and then make his/her ruling on your Motion. If no hearing is required, the judge will decide based on the briefs. I am not a lawyer, but why would you go ahead and file with AAA before your judge decides on your Motion? @BV80 has outlined the correct AAA rules to file a demand with a court order. You don't have the order yet. 

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4 hours ago, cedric_86 said:

So, since they are hung up on me not starting the filing, just tell them that I would gladly file with AAA if they would pay the filing fee as stated in the arb clause? File online with AAA and send the demand application with my response and ask them  to pay the filing fee.  That should be enough to leave that issue alone. 

No.

Get the MTC granted.  Who pays is a matter for the AAA to decide. Do NOT argue or mention this in court.  The court doesn't care, nor do they have the ability to enforce AAA rules.  Case law is all you need and the case law is clear that an MTC shall be granted here.  IMO you are changing your argument and getting trapped in side issues that are completely irrelevant.  Case law is overwhelmingly on your side. Who cares what gibberish they attorney threw out there to see if it will stick because they know they are up against a pro-se with no experience.  None of that matters.

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2 hours ago, Brotherskeeper said:

I am not a lawyer, but why would you go ahead and file with AAA before your judge decides on your Motion? @BV80 has outlined the correct AAA rules to file a demand with a court order. You don't have the order yet. 

This is the perfect response

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2 hours ago, Brotherskeeper said:

Plaintiff's attorney here is filing a motion response and sur-reply to further an argument to persuade the judge that your motion to compel arbitration should be denied. Unifund could have dismissed its case immediately upon reading your Answer's Affirmative Defense to the Complaint and moved to AAA. Unifund does not wish to go arb and wants to remain in court and have its MSJ granted. 

 

You have a pending Motion before the court to compel Unifund to arbitrate the claims. Plaintiff is allowed to file a Response in opposition to your Motion. Your court rules allow you (I assume since you filed one) to file a Reply to the Response. Plaintiff has filed a Sur-Reply. The judge will consider all these Motion papers filed and then make his/her ruling on your Motion. If no hearing is required, the judge will decide based on the briefs. I am not a lawyer, but why would you go ahead and file with AAA before your judge decides on your Motion? @BV80 has outlined the correct AAA rules to file a demand with a court order. You don't have the order yet. 

 

30 minutes ago, fisthardcheese said:
 
 

No.

Get the MTC granted.  Who pays is a matter for the AAA to decide. Do NOT argue or mention this in court.  The court doesn't care, nor do they have the ability to enforce AAA rules.  Case law is all you need and the case law is clear that an MTC shall be granted here.  IMO you are changing your argument and getting trapped in side issues that are completely irrelevant.  Case law is overwhelmingly on your side. Who cares what gibberish they attorney threw out there to see if it will stick because they know they are up against a pro-se with no experience.  None of that matters.

I agree. I brought up most of those points mentioned earlier in my response to their objection of the MTC.

I have been waiting for the ruling on the MTC which has not happened yet.  In the meantime they have sent request for discovery, filed MSJ, we've done some back and forth on objections for MTC and MSJ.  The arb issue they argued wasn't that big of a deal to me.  Their latest argument that the court should retain subject matter jurisdiction is what concerned me.

I think I should submit a request to make a decision on the MTC, or move on the lazy judge rule here.

Thanks

 

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On 4/5/2020 at 6:09 PM, Brotherskeeper said:

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. 

What do your court rules say about the timing for any reply or sur-reply? Your judge won't make a ruling until the parties have had a chance to file their briefs. It isn't being a "lazy" judge to allow both sides to argue according to your motion practice rules. What do your court rules say about a motion hearing? In my state, the movant is responsible for scheduling a hearing with the court clerk and giving notice to the opposing party of the hearing date, time and place. Your state may give the judge the discretion whether a ruling can be made on the briefs filed, or if a hearing is necessary before the judge can render his/her decision. 

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Well after all this time and no action on the case, Barclays filed a motion to rule on their MSJ, so I filed a motion to rule on the MTC.

Today the judge ruled for Barclays.

I'm not sure if the last line means that there could be no appeal.  Besides, what would I be able to appeal on?

Ruling attached.

@fisthardcheese @BV80 @Brotherskeeper

ruling.pdf

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That line just means that there is nothing else pending in that court. Now you appeal since the judge ruled in error.

 

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9 hours ago, cedric_86 said:

Well after all this time and no action on the case, Barclays filed a motion to rule on their MSJ, so I filed a motion to rule on the MTC.

Today the judge ruled for Barclays.

I'm not sure if the last line means that there could be no appeal.  Besides, what would I be able to appeal on?

Ruling attached.

@fisthardcheese @BV80 @Brotherskeeper

ruling.pdf 88.84 kB · 4 downloads

We review de novo a ruling on a motion to compel arbitration. State ex rel. Carter v. Philip Morris Tobacco Co.,879 N.E.2d 1212 (Ind.Ct.App.2008), trans. denied. We apply ordinary contract principles to determine whether the parties have agreed to arbitrate a dispute. Id. In interpreting a contract, we give the language of the contract its plain and ordinary meaning. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).

"Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005)trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough,930 N.E.2d 1238

Under Indiana contract law, the party seeking to compel arbitration has the burden of demonstrating there is an enforceable arbitration agreement and that the disputed matter is the type of claim the parties agreed to arbitrate. Brumley v. Commonwealth Bus. Coll. Educ. Corp., 945 N.E.2d 770. After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question. Id. 

Ind. Trial Rule 14(D) provides that an interlocutory appeal may be taken as provided by statute. 9 U.S.C.A. § 16 permits an immediate appeal from an order refusing a stay under § 3 of the FAA or denying a petition under § 4 of the FAA to order arbitration to proceed pursuant to the terms of the loan agreement. Geneva-Roth Capital, Inc. v. Edwards, 956 N.E.2d 1195 n.6 (Ind.Ct.App.2011)

 

9 U.S. Code § 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.

 

9 U.S. Code § 4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.

 

9 U.S. Code § 16. Appeals

(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action undesection 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

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9 hours ago, fisthardcheese said:

Appeal.  The judge ruling that there is "no genuine issue" while a pending MTC is on the docket is blatantly wrong.

I think I may have messed up by not putting any other reasons down such as that Barclay is not the correct owner of the account, or something like that.  I feel like I messed up over something so simple.  My answer just included that I wanted to arbitrate.  I guess now I understand why they kept saying can't base it off pleadings alone.  Such a letdown.

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On 6/16/2020 at 7:27 AM, BV80 said:

We review de novo a ruling on a motion to compel arbitration. State ex rel. Carter v. Philip Morris Tobacco Co.,879 N.E.2d 1212 (Ind.Ct.App.2008), trans. denied. We apply ordinary contract principles to determine whether the parties have agreed to arbitrate a dispute. Id. In interpreting a contract, we give the language of the contract its plain and ordinary meaning. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).

"Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005)trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough,930 N.E.2d 1238

Under Indiana contract law, the party seeking to compel arbitration has the burden of demonstrating there is an enforceable arbitration agreement and that the disputed matter is the type of claim the parties agreed to arbitrate. Brumley v. Commonwealth Bus. Coll. Educ. Corp., 945 N.E.2d 770. After a motion to compel arbitration has been made and supported, the burden is on the non-movant to present evidence that the supposed arbitration agreement is not valid or does not apply to the dispute in question. Id. 

Ind. Trial Rule 14(D) provides that an interlocutory appeal may be taken as provided by statute. 9 U.S.C.A. § 16 permits an immediate appeal from an order refusing a stay under § 3 of the FAA or denying a petition under § 4 of the FAA to order arbitration to proceed pursuant to the terms of the loan agreement. Geneva-Roth Capital, Inc. v. Edwards, 956 N.E.2d 1195 n.6 (Ind.Ct.App.2011)

 

9 U.S. Code § 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.

 

9 U.S. Code § 4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.

 

9 U.S. Code § 16. Appeals

(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action undesection 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

@BV80 This is really good.  I think these are the arguments I used in my MTC or reply to their response.  He denied the MTC because plaintiff wanted to sue in court.  That doesn't make sense.  Then why have the arb clause?

It's been said that Indiana is not consumer friendly.  This judge already has a bad history.

I'm slightly dumbfounded.  I cannot to have a judgement on my account as we're trying to apply for a mortgage. 

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57 minutes ago, cedric_86 said:

@BV80 This is really good.  I think these are the arguments I used in my MTC or reply to their response.  He denied the MTC because plaintiff wanted to sue in court.  That doesn't make sense.  Then why have the arb clause?

It's been said that Indiana is not consumer friendly.  This judge already has a bad history.

I'm slightly dumbfounded.  I cannot to have a judgement on my account as we're trying to apply for a mortgage. 

I truly hope it helps.  Perhaps @fisthardcheese @Brotherskeeper @Harry Seaward might have more to add.

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On 6/16/2020 at 10:55 AM, cedric_86 said:

This was on my request for MTC

 

image.png.21bfe53ab181926fec679eef29140afe.png

This is a legally baseless reason to deny arbitration.  There is a ton of case law that supports this being a blatant error on the Judge's part.  Show that case law to an appeals court and your denial will be overturned.

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2 hours ago, fisthardcheese said:

This is a legally baseless reason to deny arbitration.  There is a ton of case law that supports this being a blatant error on the Judge's part.  Show that case law to an appeals court and your denial will be overturned.

This looks like a stamp that was used, which is weird.  To have a stamp made to say this appears to mean this reason is used often.

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15 hours ago, cedric_86 said:

This looks like a stamp that was used, which is weird.  To have a stamp made to say this appears to mean this reason is used often.

Looks like an electronic stamp, which possibly can include anything a judge or clerk types into the box.

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Deadline has passed to file for motion to reconsider.  I can file motion to correct error.  I think that may buy me some time to see if I can do the appeal myself.

This is one of the docs I used for guidance when doing the MTC:  https://kkclegal.com/uploads/documents/Compelling-and-Staying-Arbitration-in-Indiana.pdf

The part that maybe I missed is the burden of proving:  "That the disputed matter is the type of claim the parties agreed to arbitrate"  I did the general denial and didn't point anything out specifically.  However, they have the burden of proving:  Is invalid. Does not apply to the parties’ dispute.  In their response to the MTC they stated that I had the right, and never mentioned anything about it not being valid.

Is this part of the arb clause what the judge could be using to come up with his ruling? 

 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 commencement of trial.
Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or
the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or
against you only and is not made part of a class action, private attorney general action or other representative or
collective action.

I'm looking on googlescholar, but don't know exactly what to search for.  Am I to search for denials based on state court filings?

@BV80 @Brotherskeeper @fisthardcheese

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6 hours ago, cedric_86 said:

Deadline has passed to file for motion to reconsider.  I can file motion to correct error.  I think that may buy me some time to see if I can do the appeal myself.

This is one of the docs I used for guidance when doing the MTC:  https://kkclegal.com/uploads/documents/Compelling-and-Staying-Arbitration-in-Indiana.pdf

The part that maybe I missed is the burden of proving:  "That the disputed matter is the type of claim the parties agreed to arbitrate"  I did the general denial and didn't point anything out specifically.  However, they have the burden of proving:  Is invalid. Does not apply to the parties’ dispute.  In their response to the MTC they stated that I had the right, and never mentioned anything about it not being valid.

Is this part of the arb clause what the judge could be using to come up with his ruling? 

 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 commencement of trial.
Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or
the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or
against you only and is not made part of a class action, private attorney general action or other representative or
collective action.

I'm looking on googlescholar, but don't know exactly what to search for.  Am I to search for denials based on state court filings?

@BV80 @Brotherskeeper @fisthardcheese

The denial of your MTC did not specify “justice court”.  It specified that the plaintiff had chosen “state court”.  And if I remove correctly, the plaintiff did not attempt to claim a small claims or justice court exception in its objection to your MTC.  

The sentence you highlighted begins with “alternatively” .  An alternative is an option, not a mandate.  The sentence does not include language that prohibits arbitration for claims brought in justice court.  

In regard to your search efforts, do the IN rules of civil procedure apply to justice court or does justice court have its own set of rules?  But, to be honest, I don’t know that it wold matter considering there is no justice court or small claims exception in the arbitration provision.  

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