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Hello

Complaint was filed by MIDLAND CREDIT MANAGEMENT stating  that

1. Plaintiff acquired, for a valuable consideration, all right, title and interest in and to the claim set forth below originally owed by defendant to Credit One Bank 

2. There is due to Plaintiff from the defendant upon an assigned account the sum of $2,601.77

 3. A copy of said account is attached hereto as Exhibit "A"

4. Plaintiff notified defended of the assignment and demanded that defendant pay the balance due on the account but no part of the foregoing balance has been paid

Wherefore, Plaintiff prays for judgement against Defendant in the amount of $2,601.77 with interest at the statutory rate of 5% per annum from the date of judgment and cost of this action 

Attached was the July/August credit card statement, bill of sale and assignment of receivables from credit one bank,affidavit of credit one

 

I filed an answer to deny with indications that  amount owed is incorrect and plaintiff is not correct owner. Midland has submitted first discovery with request for admission.

At this point, should I file for arbitration (which is in the agreement) or respond to discovery? I have researched this forum and am still confused.
 

 

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If you want to pursue arbitration, don't "participate" in discovery. You need to respond, but don't admit or deny anything. Your responses should read something like this, and need to be made for each and every itemized request they make:

"Objection: Defendant has exercised his/her right to use private, contractual arbitration to settle plaintiff's claims against him/her, and admitting, denying or providing an otherwise informative response to plaintiff's interrogatory/request for production/request for admission #[whatever] could be interpreted by the court as a waiver of defendant's right to use arbitration."

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Yes, if you're going to respond to their discovery requests in that way, you need to get a motion to compel filed with the court first.

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2 hours ago, s007rrt said:

 

@Harry Seaward

 

Thank you for informing about the response. Should I file a motion to move to arbitration at this time as well? Is there a template to use for this?

 

Do you have a copy of the card agreement governing your account? 

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By affirming my name, address and that I am a not minor, is this considered "participating"? All other response have referenced the motion for arbitration.

Thank you.

Edited by s007rrt
Added "not a" minor

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13 minutes ago, s007rrt said:

By affirming my name, address and that I am a minor, is this considered "participating"? All other response have referenced the motion for arbitration.

Thank you.

Read the practice note on Ohio arb at the link below:

Waiver

A party may waive its right to compel arbitration by filing a complaint in court to resolve the same claims that are subject to arbitration. Likewise, when a plaintiff files a complaint asserting arbitrable claims, a defendant may waive the right to arbitrate those claims by failing to respond to the complaint with a motion to stay the court proceedings and compel arbitration. In determining whether a party has waived its right to arbitrate, the key issue for a court to determine is whether the party seeking to arbitrate acted inconsistently with the its right to arbitrate by engaging in court litigation. (See Peterson, 1999 WL 1138586, at *2-3; Hoppel v. Feldman, 2011 WL 862052, at *7 (Ohio App. 7th Dist. Mar. 9, 2011).)

Factors the court may consider include:

  • Delay in filing a motion to stay proceedings or compel arbitration.
  • The extent of the party’s participation in the litigation, including discovery and dispositive motions.
  • Whether the requesting party invoked the court’s jurisdiction through filing a pleading before moving to stay the proceedings.
  • Whether the non-requesting party was prejudiced. (See Hoppel, 2011 WL 862052, at *7; Chrysler Fin. Servs. v. Henderson, 2011 WL 6927638, at *9-10 (Ohio App. 4th Dist. Dec. 23, 2011) (defendant waived right to arbitration by demonstrating knowledge of arbitration agreement, participating in court conferences and discovery, and waiting until plaintiff’s summary judgment motion before seeking arbitration).)
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Credit One has a carve out for small claims cases.  If this case is in small claims court a MTC arb may be denied because of that clause.

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(hat tip: @nobk4me)

1925.02 Jurisdiction.
(A)

(1) Except as provided in division (A)(2) of this section, a small claims division established under section 1925.01 of the Revised Code has jurisdiction in civil actions for the recovery of taxes and money only, for amounts not exceeding six thousand dollars, exclusive of interest and costs.

(2)

(a) A small claims division does not have jurisdiction in any of the following:

(i) Libel, slander, replevin, malicious prosecution, and abuse of process actions;

(ii) Actions on any claim brought by an assignee or agent, except a claim to recover taxes that is filed by any authorized employee of a political subdivision or any authorized officer or employee of the state or a claim filed by a person designated under section 1925.18 of the Revised Code to act as the representative of a prosecuting attorney;

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