cedric_86

Sued by Unifund for Barclays Bank card in Indiana

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I also found this, which doesn't look to help my case:  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)).

But also found this:  Under the IUAA, if a party starts or threatens arbitration against another party, the party resisting arbitration can file a motion on ten days’ notice asking the court to stay the arbitration (Ind. Code §§ 34-57-2-16 and 34-57-2-3(b)). The court must stay arbitration of the dispute if the court finds: The party resisting arbitration did not agree to arbitration. The dispute falls outside the scope of the parties’ arbitration agreement. Non-arbitrable issues between the parties are so inseparable from the arbitrable issues that the arbitrators’ findings are likely to have collateral estoppel effect in the trial of the non-arbitrable issues.

            Plaintiff did not file to stay the arbitration, but since they filed in court that shows they resisted arbitration.

@fisthardcheese @BV80 @Brotherskeeper

 

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5 hours ago, cedric_86 said:

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)).

Unifund agreed to arbitrate due to the fact that it claims to have purchased the account and is the owner of that account.  By purchasing the account, it is subject to the terms and conditions of the account which include arbitration.  It cannot change the cardmember agreement.  It cannot claim that you owe the balance which is based upon those terms and conditions in the cardmember agreement and then claim the agreement does not apply to them.  

There should be language in the agreement that states the account can be assigned or sold and that the assignee shall be entitled to the same rights under the agreement as Barclays.  In other words, Unifund agreed that it could demand arbitration (same right as Barclays).  If it can demand arbitration, so can you.  Simply because the account was sold doesn’t mean you no longer have rights under that same agreement.  

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I'm thinking this is where/why the judge ruled based off of them filing in state court:

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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This case dealt with whether there was an agreement to arbitrate:  https://www.courtlistener.com/opinion/852946/mpact-const-group-llc-v-superior-concrete-constructors-inc/

@Brotherskeeper @fisthardcheese @BV80

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6 hours ago, cedric_86 said:

I'm thinking this is where/why the judge ruled based off of them filing in state court:

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).)

I don’t understand how the above would affect your right to demand arbitration.  That case law is in regard to what actions or lack of action can cause a party to waive its right to arbitrate by certain actions.  For instance, engaging in litigation (answering a complaint, sending discovery requests) for months and never raising the issue of arbitration can be considered a waiver.  

You, not did not engage in litigation.  You did nothing that would cause you to waive your right to arbitrate.  
 

6 hours ago, cedric_86 said:

This case dealt with whether there was an agreement to arbitrate:  https://www.courtlistener.com/opinion/852946/mpact-const-group-llc-v-superior-concrete-constructors-inc/


In the above, the court had to decide if the claim (issue in dispute) being made was subject to arbitration.  

“While we acknowledge arbitration's utility in this kind of multiparty dispute, our inspection of the contract documents indicates that the subcontractors did not agree to arbitrate the issues in dispute here.”

That’s where the language of the contract is important.  The court ruled that the language in the contract did not include the issues in dispute.  It was between a general contractor and subcontractor.

”The main issue is whether MPACT and the Subcontractors agreed to arbitrate disputes arising out of their business dealings. Because no explicit arbitration provision is contained in the subcontracts, we must determine if the arbitration provision in the General Conditions was incorporated by reference into the subcontracts.”

There was no arbitration provision in the subcontracts.  So the general contractor tried to claim that the arbitration provision in the general contract included claims made by subcontractors.  The court disagreed. 

The details in that case have nothing to do with your case.  

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1 hour ago, BV80 said:
 
 

I don’t understand how the above would affect your right to demand arbitration.  That case law is in regard to what actions or lack of action can cause a party to waive its right to arbitrate by certain actions.  For instance, engaging in litigation (answering a complaint, sending discovery requests) for months and never raising the issue of arbitration can be considered a waiver.  

You, not did not engage in litigation.  You did nothing that would cause you to waive your right to arbitrate.  
 


In the above, the court had to decide if the claim (issue in dispute) being made was subject to arbitration.  

“While we acknowledge arbitration's utility in this kind of multiparty dispute, our inspection of the contract documents indicates that the subcontractors did not agree to arbitrate the issues in dispute here.”

That’s where the language of the contract is important.  The court ruled that the language in the contract did not include the issues in dispute.  It was between a general contractor and subcontractor.

”The main issue is whether MPACT and the Subcontractors agreed to arbitrate disputes arising out of their business dealings. Because no explicit arbitration provision is contained in the subcontracts, we must determine if the arbitration provision in the General Conditions was incorporated by reference into the subcontracts.”

There was no arbitration provision in the subcontracts.  So the general contractor tried to claim that the arbitration provision in the general contract included claims made by subcontractors.  The court disagreed. 

The details in that case have nothing to do with your case.  

But, with the plaintiff suing in court, that action shows them waiving arbitration.  That's all I could think of for his denial to include because the plaintiff chose to sue in state court.

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43 minutes ago, cedric_86 said:

But, with the plaintiff suing in court, that action shows them waiving arbitration.  That's all I could think of for his denial to include because the plaintiff chose to sue in state court.

You’re misunderstanding.  The issue of whether or not the right to arbitrate has been waived only applies to the actions of the party that requests arbitration.  You are the party that made the request. Therefore, it would be your actions that could possibly waive your right.  

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1 hour ago, BV80 said:

You’re misunderstanding.  The issue of whether or not the right to arbitrate has been waived only applies to the actions of the party that requests arbitration.  You are the party that made the request. Therefore, it would be your actions that could possibly waive your right.  

Right.  I'm just trying to figure out what point that I could use to file the Motion to Correct Error (TR 59).  I followed the MTC template and added:

"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 (|nd.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 (Ind. Ct. App. 2010).

Looking at the  case law in MTC, and arb clause, I don't see how the judge ruled with the reasoning that they filed suit in court.  So with the same caselaw from the MTC template, he still ruled the way he did.  I need to find caselaw that shows both parties don't need to agree to arbitrate, or something that deems the motion to correct error necessary.  I have to find something to show judge made an error in his ruling. and I would need to file it by Monday.

 

arb pic.jpg

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Still digging:

Indiana State Law The arbitration procedural framework under Indiana law is established by statute and not common law (see Natare Corp. v. D.S.I., Duraplastec Sys., Inc., 855 N.E.2d 985, 986 (Ind. 2006)). Indiana’s arbitration law is codified in the Arbitration and Alternative Dispute Resolution statute, which includes: The Opt-In Arbitration Statute, codified in Chapter 1 of the Arbitration and Alternative Dispute Resolution statute (Ind. Code §§ 34-57-1-1 to 34-57-1-26), which governs arbitration where parties without an arbitration agreement agree to arbitrate a dispute that is otherwise subject to court litigation.

The Indiana Uniform Arbitration Act (IUAA), codified in Chapter 2 of the Arbitration and Alternative Dispute Resolution statute (Ind. Code §§ 34-57-2-1 to 34-57-2-19), which sets out specific rules for court applications by arbitral parties, including applications to compel or stay arbitration. The IUAA reflects Indiana’s strong public policy favoring arbitration (see Welty Bldg. Co. v. Indy Fedreau Co., LLC, 985 N.E.2d 792, 798 (Ind. Ct. App. 2013); Marion Cmty. Sch. Corp. v. Marion Teachers a$$’n, 873 N.E.2d 605, 608 (Ind. Ct. App. 2007)). Unless an agreement provides otherwise, the IUAA applies to all arbitration agreements, including arbitration agreements between employers and employees or their respective representatives (Ind. Code § 34-57-2-1(a)).

It does not apply to: Consumer leases. Sales and loan contracts. (Ind. Code § 34-57-2-1(b).) The IUAA is based on the Uniform Arbitration Act (UAA), which the National Conference of Commissioners on Uniform State Laws revised in 2000 when it promulgated the Revised Uniform Arbitration Act (RUAA). To date, the Indiana legislature has not introduced legislation to adopt the RUAA. For more information on the RUAA and a list of states that have adopted it, see Practice Note, Revised Uniform Arbitration Act: Overview (W-004-5167). Because the IUAA governs most arbitrations in Indiana, this Note does not discuss the Opt-In Arbitration Statute in detail

 INTERSECTION OF THE FAA AND INDIANA LAW The FAA preempts conflicting state law only “to the extent that it stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 476-77 (1989) (there is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy behind the FAA is simply to ensure that arbitration agreements are enforceable)). The FAA governs arbitration agreements and awards in contracts involving interstate commerce, and the IUAA governs Indiana arbitration matters that are not preempted by the FAA (see LaSalle Grp., Inc. v. Electromation of Del. Cty., Inc., 880 N.E.2d 330, 331 (Ind. Ct. App. 2008)). Under Indiana law, the parties to a contract can agree to use the FAA to interpret their contract if the contract implicates interstate commerce (see MPACT Const. Grp., 802 N.E.2d at 904; Earley v. Edward Jones & Co., LP, 105 N.E.3d 1094, 1100 (Ind. Ct. App. 2018)).

If the arbitration clause is silent regarding choice of law, the FAA applies to the arbitration agreement even if the contract contains a choice of law provision specifying that Indiana law governs that contract. Therefore, if the parties want Indiana law to govern their arbitration agreement, they must expressly state so in the contract’s arbitration clause (see Hall St. Assocs., 552 U.S. at 590; Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 60 (1995)). Although the FAA’s substantive provisions may apply regardless of whether a party seeks enforcement of the arbitration agreement in state or federal court, the FAA does not preempt Indiana contract law and cannons of contract interpretation in determining whether the parties agreed to arbitrate any dispute (see MPACT Const. Grp., 802 N.E.2d at 906).

 @BV80 @Brotherskeeper @fisthardcheese

 

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17 hours ago, cedric_86 said:

Right.  I'm just trying to figure out what point that I could use to file the Motion to Correct Error (TR 59).  I followed the MTC template and added:

"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 (|nd.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 (Ind. Ct. App. 2010).

Looking at the  case law in MTC, and arb clause, I don't see how the judge ruled with the reasoning that they filed suit in court.  So with the same caselaw from the MTC template, he still ruled the way he did.  I need to find caselaw that shows both parties don't need to agree to arbitrate, or something that deems the motion to correct error necessary.  I have to find something to show judge made an error in his ruling. and I would need to file it by Monday.

 

arb pic.jpg

It seems the judge may not understand that EITHER party can request arbitration.  You may have to explain it to him.  Look at the language in § 3 of the FAA.

9 U.S.C. § 3

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.

It says if a suit brought in court is referable to arbitration, the court shall on application from ONE of the parties.  It does NOT say on application of the plaintiff.   That shows that either party can request arbitration. 

I might reference court rulings in which The IN Court of Appeals granted a MTC to a defendant who motioned to compel arbitration or affirmed a lower court’s decision to grant it to a defendant.   Here is one example.

Earley v. Edward Jones & Co., LP  

The trial court properly granted the Defendants' motion to compel arbitration. We affirm. Earley v. Edward Jones & Co., LP, 105 N.E.3d 1094, 1102 (Ind. Ct. App. 2018)).

https://scholar.google.com/scholar_case?case=16505708573931847484&q=“faa”+AND+“Arbitration”+AND+“motion+to+compel”+&hl=en&scisbd=2&as_sdt=4,15

 

8 hours ago, cedric_86 said:

If the arbitration clause is silent regarding choice of law, the FAA applies to the arbitration agreement even if the contract contains a choice of law provision specifying that Indiana law governs that contract.

Your cardmember agreement already specifies that the FAA governs the arbitration provision.  

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@cedric_86 "If any claim is advanced in 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." That's what the contract says. However, the next clause of the arb provision talks about pursuing a claim in Justice of the Peace Court in Delaware or your state's equivalent court. Sorry, but I don't have time to reread this thread to find out if you are in small claims or not. 

MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 906 (Ind.2004).

Whether the parties agreed to arbitrate any disputes is a matter of contract interpretation, and most importantly, a matter of the parties' intent. AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) ("As with any contract, the touchstone for interpreting an arbitration clause must be the intention of the parties."). "Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of the parties." Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128, 1129 (Ind.1998); Cont'l Basketball a$$'n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.1996). Consequently, imposing on parties a policy favoring arbitration before determining whether they agreed to arbitrate could frustrate the parties' intent and their freedom to contract. The Supreme Court has made this clear— "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quotations and citations omitted); accord Homes by Pate, Inc. v. DeHaan, 713 N.E.2d 303, 306 (Ind.Ct.App. 1999).

Additionally, courts have regularly distinguished the treatment given questions of the existence of an agreement to arbitrate and questions of the scope of an agreed-to arbitration clause. In determining the scope of an arbitration agreement, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Volt, 489 U.S. at 476, 109 S.Ct. 1248; accord Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927; Bank One, 281 F.3d at 513-14 n. 24.[4] Because there was already an 907*907 agreed-to arbitration clause in these cases, applying federal policy in construing the arbitration clause would not have frustrated the parties' intent. Using the policy favoring arbitration to decide whether the parties did in fact agree to arbitrate does not answer the question but rather avoids having to decide it. Only after it has been determined that the parties agreed to arbitrate their disputes does the policy favoring arbitration play an important role. We must determine, therefore, whether MPACT and the Subcontractors agreed to arbitrate without resort to the federal policy favoring arbitration.

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14 hours ago, Brotherskeeper said:

@cedric_86 "If any claim is advanced in 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." That's what the contract says. However, the next clause of the arb provision talks about pursuing a claim in Justice of the Peace Court in Delaware or your state's equivalent court. Sorry, but I don't have time to reread this thread to find out if you are in small claims or not. 

MPACT Constr. Group, LLC v. Superior Concrete Constructors, Inc., 802 N.E.2d 901, 906 (Ind.2004).

Whether the parties agreed to arbitrate any disputes is a matter of contract interpretation, and most importantly, a matter of the parties' intent. AGCO Corp. v. Anglin, 216 F.3d 589, 593 (7th Cir.2000) ("As with any contract, the touchstone for interpreting an arbitration clause must be the intention of the parties."). "Courts in Indiana have long recognized the freedom of parties to enter into contracts and have presumed that contracts represent the freely bargained agreement of the parties." Trimble v. Ameritech Publ'g, Inc., 700 N.E.2d 1128, 1129 (Ind.1998); Cont'l Basketball a$$'n v. Ellenstein Enters., 669 N.E.2d 134, 140 (Ind.1996). Consequently, imposing on parties a policy favoring arbitration before determining whether they agreed to arbitrate could frustrate the parties' intent and their freedom to contract. The Supreme Court has made this clear— "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." AT & T Techs., Inc. v. Communications Workers of Am., 475 U.S. 643, 648, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986) (quotations and citations omitted); accord Homes by Pate, Inc. v. DeHaan, 713 N.E.2d 303, 306 (Ind.Ct.App. 1999).

Additionally, courts have regularly distinguished the treatment given questions of the existence of an agreement to arbitrate and questions of the scope of an agreed-to arbitration clause. In determining the scope of an arbitration agreement, "due regard must be given to the federal policy favoring arbitration, and ambiguities as to the scope of the arbitration clause itself resolved in favor of arbitration." Volt, 489 U.S. at 476, 109 S.Ct. 1248; accord Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927; Bank One, 281 F.3d at 513-14 n. 24.[4] Because there was already an 907*907 agreed-to arbitration clause in these cases, applying federal policy in construing the arbitration clause would not have frustrated the parties' intent. Using the policy favoring arbitration to decide whether the parties did in fact agree to arbitrate does not answer the question but rather avoids having to decide it. Only after it has been determined that the parties agreed to arbitrate their disputes does the policy favoring arbitration play an important role. We must determine, therefore, whether MPACT and the Subcontractors agreed to arbitrate without resort to the federal policy favoring arbitration.

Thanks.  They did not sue in small claims court (which is under 6K in Indiana - the debt was only 2k), but they sued in district court.

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9 hours ago, cedric_86 said:

Thanks.  They did not sue in small claims court (which is under 6K in Indiana - the debt was only 2k), but they sued in district court.

An arbitration provision is a matter of contract and the contracting parties' intent. It was the intent of the parties in your case that, "If any claim is advanced in 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." Your judge can't rewrite the unambiguous term that the right to elect arbitration, while a claim is advancing in court, can be made at any time before commencement of trial. 

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Hey guys,  

After much toil I have finally finished my Motion to Correct Error (Ind. TR 59).  I was not sure this was the proper code to use of Ind. TR 60 because there is a final judgement.

I would be grateful for any and all who can look over, make suggestions, or give feedback,  As you can tell, I do not know what I am doing. LOL.  Today is the deadline, so I will file shortly.

Thanks to all for all of your help thus far.

@BV80 @Brotherskeeper @fisthardcheese

Motion to Correct Error-redacted.pdf

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46 minutes ago, cedric_86 said:

Hey guys,  

After much toil I have finally finished my Motion to Correct Error (Ind. TR 59).  I was not sure this was the proper code to use of Ind. TR 60 because there is a final judgement.

I would be grateful for any and all who can look over, make suggestions, or give feedback,  As you can tell, I do not know what I am doing. LOL.  Today is the deadline, so I will file shortly.

Thanks to all for all of your help thus far.

@BV80 @Brotherskeeper @fisthardcheese

Motion to Correct Error-redacted.pdf 198.12 kB · 2 downloads

I think it looks good.  I understand what you mean about Rule 59 or 60.  It’s confusing.   @Brotherskeeper what do you think?

https://www.in.gov/judiciary/rules/trial_proc/#_Toc25572097

You have worked so hard and should be proud of yourself.  I’m quite impressed with your research, diligence, and writing skills.  Good job!

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@cedric_86 A suggestion--and it may be too late--is to include a citation to the court record (Defendant's Exhibit A, page 6, paragraph 3.) if you marked the Barclays agreement as an exhibit when you filed your MTC. The judge will appreciate knowing exactly where in the court record to find the evidence to support your statements of fact. You've done a great job with citing FAA and Indiana court rulings. 

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22 hours ago, Brotherskeeper said:

@cedric_86 A suggestion--and it may be too late--is to include a citation to the court record (Defendant's Exhibit A, page 6, paragraph 3.) if you marked the Barclays agreement as an exhibit when you filed your MTC. The judge will appreciate knowing exactly where in the court record to find the evidence to support your statements of fact. You've done a great job with citing FAA and Indiana court rulings. 

I saw your suggestion in time to make the changes.  I just realized 2 things.  I didn't attach the Card Agreement when I efiled this.  I guess I figured, they already had it.

I added the changes to the motion, but realized  it was a different card agreement and the pages are different.  The one submitted with the MTC covered periods thru 2017, which about when the default occured.  The other card agreement I downloaded from Barclay's site ending in 2019, so the page numbers are off.

I'm thinking I could just go and add the attachment, but I don't want to change the document.  So, does it matter which agreement I submit as the attachment to the motion?

@Brotherskeeper @BV80 can either suggest how I can remedy this mistake?  Would I need to submit the card agreement (which one)?  Do I need to submit the AAA rules since I reference it, although they were submitted before?

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@fisthardcheese @Brotherskeeper @BV80

I want to thank you all again. You have been kind and patient with me. I got down to the wire, but I got it in there.

I had a eye doctor appointment and took my laptop to finish it up and get it uploaded by the deadline.

I was in the chair with my eyes dialated trying to see enough to hit submit.  I got it in with 1 min. to spare. LOL

It's a good thing this isn't a paper due for college, because with all the copying/pasting, I would definitely be thrown out for plagerism. LOL

So, I thank you all for your words, explanations, and research that made it into this motion.

 

 

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Ok, the Motion to Correct Error was denied.  

The judge gave the same reason:  Plaintiff elected to bring suit in your jurisdiction rather than arbitrate per the card agreement. 

It still doesn't make sense to me.  Unifund never even filed a response to counter the motion.  I'm quite sure the judge and Unifund are in cahoots.  Like I stated before, this judge's reputation preceeds him.  Once I saw his name assigned the case, I didn't think it would go good.

Although, I would like to fight this just on principle, I think I'm done.  It costs $250 to file an appeal.  I don't have the time or skills to do that filing by myself with briefs and all that and I'm in the middle of purchasing a home. No lawyer (I have LegalShield so there would be a discount) will assist me because it would cost more to represent me than the amount owed.

So again, I say thanks for all your help. @BV80 @Brotherskeeper @fisthardcheese 

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1 minute ago, cedric_86 said:

Ok, the Motion to Correct Error was denied.  

The judge gave the same reason:  Plaintiff elected to bring suit in your jurisdiction rather than arbitrate per the card agreement. 

It still doesn't make sense to me.  Unifund never even filed a response to counter the motion.  I'm quite sure the judge and Unifund are in cahoots.  Like I stated before, this judge's reputation preceeds him.  Once I saw his name assigned the case, I didn't think it would go good.

Although, I would like to fight this just on principle, I think I'm done.  It costs $250 to file an appeal.  I don't have the time or skills to do that filing by myself with briefs and all that and I'm in the middle of purchasing a home. No lawyer (I have LegalShield so there would be a discount) will assist me because it would cost more to represent me than the amount owed.

So again, I say thanks for all your help. @BV80 @Brotherskeeper @fisthardcheese 

Bless your heart!  The judge is an idiot.  He is both ignorant and misinformed.  

I understand if you choose to settle.  You have to do what is best for you, and that is all that matters.  You researched and did your best to put up a great fight.  We all think you did an excellent job.  Unfortunately, due to a stupid judge, it seems the odds were against you.  

Get this behind you, and enjoy your new home.  I wish you the very best for the future.  😀

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1 minute ago, BV80 said:

Bless your heart!  The judge is an idiot.  He is both ignorant and misinformed.  

I understand if you choose to settle.  You have to do what is best for you, and that is all that matters.  You researched and did your best to put up a great fight.  We all think you did an excellent job.  Unfortunately, due to a stupid judge, it seems the odds were against you.  

Get this behind you, and enjoy your new home.  I wish you the very best for the future.  😀

Thanks for the well wishes.  But, boy does the fighter in me want to keep fighting.  I was hoping a lawyer could at least help me get started, but no takers.

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31 minutes ago, cedric_86 said:

Thanks for the well wishes.  But, boy does the fighter in me want to keep fighting.  I was hoping a lawyer could at least help me get started, but no takers.

That judge deserves a take-down from the appeals court.  But, you’re correct that an appeal is more difficult to prepare and takes more effort and time.  Don’t feel badly if circumstances in your life right now don’t allow you to take that time or if you’re tired and just don’t have the energy   

Just do what is right and best for you at this time. That’s all anyone can do.  

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10 hours ago, BV80 said:

Bless your heart!  The judge is an idiot.  He is both ignorant and misinformed.  

Yes! Yes. And, yes.

10 hours ago, cedric_86 said:

But, boy does the fighter in me want to keep fighting.

I know. You have other, now more important, battles to fight. You worked really hard, but you came up against an immovable object in your judge. We had a recent case in Virginia with a similar judge. It's tough to accept that the task of correcting a clearly errant judge is out of reach. Best of luck to you. 

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On 8/25/2020 at 11:42 PM, cedric_86 said:

Thanks for the well wishes.  But, boy does the fighter in me want to keep fighting.  I was hoping a lawyer could at least help me get started, but no takers.

Honestly, you already did all of the appeal work in your motion to correct. All of the exact same argument and case law can be copy/pasted into an appeal petition.  It would just be a matter of changing the heading and filing it in the proper court to appeal.  But that is your choice.  This is why I personally never bother with motions to reconsider or a motion to correct, as it just goes back to the same biased judge who clearly could case less about the rule of law and just wants to look down upon pro-se defendants.

All the best to you!

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1 hour ago, fisthardcheese said:

Honestly, you already did all of the appeal work in your motion to correct. All of the exact same argument and case law can be copy/pasted into an appeal petition.  It would just be a matter of changing the heading and filing it in the proper court to appeal.  But that is your choice.  This is why I personally never bother with motions to reconsider or a motion to correct, as it just goes back to the same biased judge who clearly could case less about the rule of law and just wants to look down upon pro-se defendants.

All the best to you!

I agree, that it seems like a waste of time because you get the same judge.  My thought was that it would buy me time to see to decide on if I wanted to file the appeal or not with the $250 filing fee.  I wonder if it would work, because the judge may feel whether it goes to arbitration or not, the outcome would be the same. At least that's how my Legalshield attorney feels.  So, I didn't want to waste the money.

You almost make it sound easy (with the cut/paste).  I think when I saw the part about the brief and contents, it seemed overwhelming.  I wouldn't mind attempting it if I had some help.  I really wanna stick it to the man. LOL

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