Racinghart03

DV Sent back by Collections Attorney for Cavalry Portfolio..What Next?

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Update: @fisthardcheese @BV80 @BackFromTheDebt So I submitted my motion and just received a letter from the JDB stating they will be submitting an order for a summary judgement to the court. The letter states they are asking the court " to make a final decision against you without a trial or an opportunity for you to present your case to a judge. We are requesting that decision to be entered against you because we say that the important facts are not in dispute and the law entitles us to a judgment. If you object to the motion, you must file a written response stating what facts are disputed and why a decision should not be entered against you." I have 10 days to notify the clerk and the attorney that I object to the order. Soooooo..... now what??? I think I need to object. Sounds like the right thing to do. Need advice. I feel like I should dispute the amount, as I have no recollection of any of the charges that equal the sum. Any other ideas? Obviously they want to keep this IN the court. I need it OUT. What is the next move?

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21 minutes ago, Racinghart03 said:

Update: @fisthardcheese @BV80 @BackFromTheDebt So I submitted my motion and just received a letter from the JDB stating they will be submitting an order for a summary judgement to the court. The letter states they are asking the court " to make a final decision against you without a trial or an opportunity for you to present your case to a judge. We are requesting that decision to be entered against you because we say that the important facts are not in dispute and the law entitles us to a judgment. If you object to the motion, you must file a written response stating what facts are disputed and why a decision should not be entered against you." I have 10 days to notify the clerk and the attorney that I object to the order. Soooooo..... now what??? I think I need to object. Sounds like the right thing to do. Need advice. I feel like I should dispute the amount, as I have no recollection of any of the charges that equal the sum. Any other ideas? Obviously they want to keep this IN the court. I need it OUT. What is the next move?

Object on the grounds you already filed an MTC, which takes the matter out of the jurisdiction of the court.  

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@BV80 makes sense. What makes my MTC trump their motion for judgment? Timing? I have read this is a critical response so I want to get it right. From what I am gathering I need to present a fact of the case that warrants the case to be heard. Or something along the lines of the right the attorney has to actually sue me for.. Like do they really own the debt. Which I feel they have presented enough evidence to prove that.. So that's out the window. I would dispute what you said, and the dollar amount and whether or not I actually received all the things that were charged on that account. It almost six years ago. They provided me 3 or 4 statements. I had that account for 11 years. Also I just checked the Court pages and there is a form for submitting a rejection. So that's easy enough. I will also need to send in a brief disputing the statements the JDB submitted. I need to come up with admissible facts and evidence for my brief. I will also look for some case law that explains why this judgement should not be granted. Clock is ticking. I only have 10 days. Do I need an affidavit? I did not submit one with my motion. They submitted one with theirs. Something else of interest maybe...so they did not send or file an objection to my motion. They just submitted a motion of their own. I will be submitting an objection. I guess the real question is what do I put in my brief? Do I mention that the JDB is in breach of contract as they pursued court action AFTER my arb demand? Do I mention they were operating in a direct violation of the Governors shut down order? or do I even mention I plan on bringing my own complaints against them when I go to arb? It looks like they again,  are just trying to get a judgement against me. 

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You will probably lose an MSJ if it gets to that.

The reason why your MTC trumps their MSJ is simple.  The contract has an arbitration agreement.  The Supreme Court ruled that arbitration takes the matter out of the courts and into arbitration.  Therefore, the court doesn't even have jurisdiction in the matter.  The arbitration company does.  

Since the court doesn't have jurisdiction, that takes the power to rule on the MSJ away from the court. 

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13 minutes ago, BackFromTheDebt said:

You will probably lose an MSJ if they have one.

The reason why your MTC trumps their MSJ is simple.  The contract has an arbitration agreement.  The Supreme Court ruled that arbitration takes the matter out of the courts and into arbitration.  Therefore, the court doesn't even have jurisdiction in the matter.  The arbitration company does.  

Since the court doesn't have jurisdiction, that takes the power to rule on the MSJ away from the court. 

@BV80 So I will lose and they get a judgement? That means they win the case. I should object correct? I am reading that I need to object and disassemble their statements. Is this not correct? I don't know why I they would be granted the win when I elected ARB BEFORE they sued they would win anything. 

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You MUST object to their MSJ.

What I meant is, IF the court hears their MSJ, you will probably lose, unless they have some major holes.  That is why you need to prevent their MSJ from being heard in the first place.

As I explained earlier, matters of jurisdiction take precedence over anything else.  That is why your MTC must be heard first.  So you object to their MSJ on the grounds that the court has no jurisdiction.  

If there really are a lot of holes in their MSJ, you could address those holes as well.  That is what I did a few times, BUT, the court never heard their MSJ, because the case was sent to arbitration first.  

The problem is, in some jurisdictions you may waive your right to arbitration by arguing against their MSJ.  Not in my state, but in some other states. 

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27 minutes ago, BackFromTheDebt said:

You MUST object to their MSJ.

What I meant is, IF the court hears their MSJ, you will probably lose, unless they have some major holes.  That is why you need to prevent their MSJ from being heard in the first place.

As I explained earlier, matters of jurisdiction take precedence over anything else.  That is why your MTC must be heard first.  So you object to their MSJ on the grounds that the court has no jurisdiction.  

If there really are a lot of holes in their MSJ, you could address those holes as well.  That is what I did a few times, BUT, the court never heard their MSJ, because the case was sent to arbitration first.  

The problem is, in some jurisdictions you may waive your right to arbitration by arguing against their MSJ.  Not in my state, but in some other states. 

@BV80 Ah so fill out the objection form and leave it at that?  And that also supports my request for arb for any disputes. Why would I argue something in court when I already elected and are entitled to arb?? I thought about that and while I do not know for sure if I would lose my right, it makes sense on why it is possible. I did not submit a affidavit of support with my motion, but it was not listed as a requirement. I just hope my MTC holds water and does not get tossed out on some technicality I was not aware of.  I do think it is interesting that the JDB has not submitted or supplied me with the forms the court requires to submit a motion, I supplied them with the copies of the forms.... I wonder if they are trying to bait me or rattle my cage.... They have 10 days to object to my motion. They have not as of yet. My motion has not been granted as of yet either. 

Found this... To your point. Looks like I just object.....

Wein, et al. v. Morris, et al., 2008 WL 1699421 (N.J. 2008) – Although New Jersey courts will enforce valid arbitration agreements (including agreements requiring the arbitration of employment disputes), the New Jersey Supreme Court recently made clear that parties may waive their right to arbitration by engaging in litigation activities rather than diligently pursuing arbitration under their agreement.

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21 hours ago, BackFromTheDebt said:

I hope you filled out an affidavit that the agreement was a true and correct agreement.

@BackFromTheDebt I did not. I saw nothing about doing so in the directions for filing a motion on the NJ court page.  I did submit the agreement with the MTC. There is a section in the "support of motion" form where I entered this...As provided in the credit card member agreement, I have selected arbitration to resolve any disputes arising from the claims of debt made by the plaintiff. Plaintiff was sent notification of this demand by certified mail return receipt on May 20th, 2020. On or about June 12th , 2020 the plaintiff filed suit with the Superior Court of NJ. Under that box there is this...I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.

And then the doc needed to be signed at dated. Do I or should I do anything else?

I have it ready to go if needed. There is no fee to submit it. This is what I have. Ready to be notarized. 

The Credit Card Member Agreement Electronically Filed with the court with respect to Docket DC-XXXXXX_XX  was a true and correct agreement.

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@BackFromTheDebt Another thought....is my Opposition to their motion considered litigating? I will submit the Affidavit this week. It is free to Efile so I can just upload that. I almost feel like they are baiting me to to try and start litigating. Or just being really lazy and throwing whatever they can and hoping it sticks. 

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16 hours ago, BackFromTheDebt said:

That might work.  Make sure you are objecting to the MSJ on these grounds. 

@BackFromTheDebt That is the exact statement I put in the section for the reason I am objecting to the plaintiffs  MSJ. Our court has prefabbed fillable PDF forms that you just enter the case specific information into the fields and upload to the court in the same format. I am guessing when all the docs are uniform it makes the clerks job easier to go through them. 

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On 8/27/2020 at 7:10 PM, Racinghart03 said:

Update: @fisthardcheese @BV80 @BackFromTheDebt So I submitted my motion and just received a letter from the JDB stating they will be submitting an order for a summary judgement to the court. The letter states they are asking the court " to make a final decision against you without a trial or an opportunity for you to present your case to a judge. We are requesting that decision to be entered against you because we say that the important facts are not in dispute and the law entitles us to a judgment. If you object to the motion, you must file a written response stating what facts are disputed and why a decision should not be entered against you." I have 10 days to notify the clerk and the attorney that I object to the order. Soooooo..... now what??? I think I need to object. Sounds like the right thing to do. Need advice. I feel like I should dispute the amount, as I have no recollection of any of the charges that equal the sum. Any other ideas? Obviously they want to keep this IN the court. I need it OUT. What is the next move?

LOL I would thank them for sending me "Exhibit A" in my eventual arbitration case FDCPA claim against them.

12 hours ago, Racinghart03 said:

@BackFromTheDebt That is the exact statement I put in the section for the reason I am objecting to the plaintiffs  MSJ. Our court has prefabbed fillable PDF forms that you just enter the case specific information into the fields and upload to the court in the same format. I am guessing when all the docs are uniform it makes the clerks job easier to go through them. 

Whatever arguments they presented in their MSJ, I would make sure each and every point they make is refuted in some way in my Opposition response.  Even if my refute is the same for each point.  If they mention "no genuine dispute", my response is that there is a pending genuine dispute regarding jurisdiction in Defendant's MTC.  If they mention that no evidence was shown to counter their debt claim or something, I would repeat that the debt claim falls outside the court's jurisdiction and is for an arbitrator to decide based upon the contract between the parties, inserting case law on arbitration and then again mentioning my pending MTC.  Just repeat for every single argument they tried to make.

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9 hours ago, fisthardcheese said:

LOL I would thank them for sending me "Exhibit A" in my eventual arbitration case FDCPA claim against them.

Whatever arguments they presented in their MSJ, I would make sure each and every point they make is refuted in some way in my Opposition response.  Even if my refute is the same for each point.  If they mention "no genuine dispute", my response is that there is a pending genuine dispute regarding jurisdiction in Defendant's MTC.  If they mention that no evidence was shown to counter their debt claim or something, I would repeat that the debt claim falls outside the court's jurisdiction and is for an arbitrator to decide based upon the contract between the parties, inserting case law on arbitration and then again mentioning my pending MTC.  Just repeat for every single argument they tried to make.

@fisthardcheese There are three arguments in their brief. A. Standards for Summary Judgement: Essentially that the law states they should be granted a MSJ. B. Existence of Uncontested Facts: Basically what they said has been uncontested and the mention of no counter to their claim in so many words AND no genuine dispute. And C :Statutory Obligation: Law states I am obligated to pay for goods and services and did not. Is this best argued in a brief? Or could this waive my right to arb as I am getting caught up in litigating? There is a form of opposition with a large area to write in. Should I just enter the arguments there as they are quick and all the same? I attached the document for reference.

396133878_FormA.thumb.JPG.f3226c31f91e1f712f2ca122172cf77e.JPG

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@BV80 @fisthardcheese @BackFromTheDebt I have this brief (less the case law). Can you guys lay your eyes on it? I want it ready in the event you think I should submit it. I have to get in uploaded by Friday. Thank youuuu! 1, 2, and 3 are in correlation with each of the arguments in the plaintiffs brief. Also any thoughts on if the brief is even necessary? I dont want to waive my right to arb if this brief is considered litigating. I will be submitting the Opposition packet regardless. The brief is the question. 

Defendant, Happy Me representing himself in the case Pro Se, hereby submits the following Opposition to the Plaintiffs’ attorneys Motion for Summary Judgement.

 

RESPONSE TO THE PLAINTIFFS STATEMENT OF STANDARDS FOR SUMMARY JUDGEMENT, EXISTENCE OF UNCONTESTED MATERIAL FACTS, AND STATUTORY OBLIGATION.

 

1.  There is a genuine dispute in the pending motion to compel arbitration previously filed with the court under docket MRS-DC-123456-00. Thereby the “Standard for Summary” judgement has not been met and must be denied.

2.  The plaintiffs claim of a debt existing, the amount of debt, and the calculation of any debt with interest is disputed and the outcome of this dispute is for an arbitrator to decide. Due to the presence of a correct and true arbitration agreement between the parties, this matter is not within the jurisdiction of this court as both parties are bound by the aforementioned agreement. With a genuine dispute present to the plaintiffs’ claim, aside a pending Motion to Compel Arbitration, the plaintiffs’ claim of “Uncontested Material Facts” is inaccurate and a summary judgement must be denied.

3.  The plaintiffs claim of a debt existing, the amount of debt, and the calculation of any debt with interest is disputed and the outcome of this dispute is for an arbitrator to decide. Any “Statutory Obligation” to pay the whole, or any part of a claim of debt, would be based on the outcome of binding arbitration. Due to the presence of a correct and true arbitration agreement between the parties, this matter is not within the jurisdiction of this court as both parties are bound by the aforementioned agreement. With a genuine dispute present to the plaintiffs’ claim, aside a pending Motion To Compel Arbitration, the plaintiffs’ motion to a summary judgement must be denied.

 

Conclusion

 

For the reasons set forth above, the Plaintiffs’ motion for summary judgement is respectfully opposed as there are genuine disputes present and with a binding arbitration agreement between the parties, the matter must be sent to arbitration to settle these disputes as they are not within the jurisdiction of this honorable court.  

 

 

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1 hour ago, Racinghart03 said:

RESPONSE TO THE PLAINTIFFS STATEMENT OF STANDARDS FOR SUMMARY JUDGEMENT, EXISTENCE OF UNCONTESTED MATERIAL FACTS, AND STATUTORY OBLIGATION.

 

1.  There exists is a genuine dispute in the above captioned case. Defendant has a pending motion to compel arbitration previously filed with the  pending before This Court under docket MRS-DC-123456-00, which speaks to the jurisdiction of this subject matter. Thereby causing the “Standard for Summary” judgement has  to not been be met and must be denied. further, causing the filing of Plaintiff's Motion for Summary Judgement to be improper.

2.  The Plaintiffs claim of a debt existing, the amount of debt, and the calculation of any debt with interest is disputed and the outcome of this dispute has been denied by the Defendant, and is for an arbitrator to decide per the underlying contract and outlined in Defendant's Motion To Compel Arbitration pending before This Court. Due to the presence of a correct and true valid arbitration agreement between the parties, this matter is not within the jurisdiction of this court as both parties are bound by the aforementioned agreement. With a genuine dispute present to the plaintiffs’ claim, aside a pending Motion to Compel Arbitration, the plaintiffs’ claim of “Uncontested Material Facts” is inaccurate and a summary judgement must be denied.

3.  The plaintiffs claim of a debt existing, the amount of debt, and the calculation of any debt with interest is disputed and the outcome of this dispute is for an arbitrator to decide. Any “Statutory Obligation” to pay the whole, or any part of a claim of debt, would be based on the outcome of binding arbitration, and any further litigating of this matter by Defendant in This Court may waive his right to the contractual private arbitration, therefore, Defendant intends to not waive his rights to private arbitration and only present his material facts to the arbitrator upon This Court's granting his Motion To Compel. Due to the mere presence of a correct and true valid arbitration agreement between the parties, this matter is not within the jurisdiction of this court as both parties are bound by the aforementioned agreement. With this being a genuine dispute present to the plaintiffs’ claim in this matter, aside a pending Motion To Compel Arbitration, the Plaintiffs’ motion to a summary judgement must be denied and Defendant's Motion To Compel Arbitration should be granted.

 

Conclusion

 

For the reasons set forth above, the Plaintiffs’ motion for summary judgement is respectfully opposed as there are genuine disputes present and with a binding arbitration agreement between the parties, the matter must be sent to arbitration to settle these disputes as they are not within the jurisdiction of this honorable court.  

My suggested changes are above.  Additionally, watch the capitalizations for each party, including "This Court" or "The Court".  When using The Court in this way, it essentially is referring to the Judge, as he is "The Court", so his title should be capitalized properly.  Just little things you want to keep in mind as to not insult a Judge and also show that even though you may be defending yourself, you still understand how to present yourself in court.

Also if you have time, I would possibly fit some case law in there.  It may already be in your MTC, but anything to bolster your argument that a VALID arbitration agreement means that the court only has the ability to decide on the matter of arbitration and NOT on the merits of the case (i.e. the debt) would be good.  As well as any case law that says any genuine dispute is a reason to deny summary judgement would be good to add in.

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@fisthardcheese Truly appreciate this. I will make the edits and get the brief filed along with the opposition to a motion packet that The Court requires. I do not have an affidavit on file stating that the agreement is correct and true. I did state that in the motion packet I filed for the MTC. Should I get one in or will the official form suffice? On the actual brief I copied the same arb case law I used on my MTC arb and stuck it under the first argument. For the ease or reading I did not post it on the forum. 

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2 hours ago, Racinghart03 said:

@fisthardcheese Truly appreciate this. I will make the edits and get the brief filed along with the opposition to a motion packet that The Court requires. I do not have an affidavit on file stating that the agreement is correct and true. I did state that in the motion packet I filed for the MTC. Should I get one in or will the official form suffice? On the actual brief I copied the same arb case law I used on my MTC arb and stuck it under the first argument. For the ease or reading I did not post it on the forum. I attached what I put in the Opposition form as a reference so you can see what I did there. I reworded it and pulled verbiage from the brief. Not sure If I am going to get any more case law in the brief aside from the arb stuff. Ill try. Needs to go in tomorrow. 

 

Opp.JPG

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4 hours ago, Racinghart03 said:

@fisthardcheese Truly appreciate this. I will make the edits and get the brief filed along with the opposition to a motion packet that The Court requires. I do not have an affidavit on file stating that the agreement is correct and true. I did state that in the motion packet I filed for the MTC. Should I get one in or will the official form suffice? On the actual brief I copied the same arb case law I used on my MTC arb and stuck it under the first argument. For the ease or reading I did not post it on the forum. 

Don't worry about an affidavit for now.  That can be done later IF it is needed because the other side claims your agreement is incorrect.  You are welcome to get one typed up and notarized. But I wouldn't file it just yet. I would only focus on getting the Summary Judgement resolved in my favor first.

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14 minutes ago, fisthardcheese said:

Don't worry about an affidavit for now.  That can be done later IF it is needed because the other side claims your agreement is incorrect.  You are welcome to get one typed up and notarized. But I wouldn't file it just yet. I would only focus on getting the Summary Judgement resolved in my favor first.

@fisthardcheese Thank you. Still looking for some supporting case law for the other arguments but if I cant find what I want to add, I have enough to submit. I feel the brief was strong. The JDB attorney just keeps ignoring the arb demand I sent before they even filed suit. Hopefully that will work in my favor when I get my back off the ropes. Thank you again. I will keep you all posted! 

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On 9/3/2020 at 12:44 PM, Racinghart03 said:

@fisthardcheese Thank you. Still looking for some supporting case law for the other arguments but if I cant find what I want to add, I have enough to submit. I feel the brief was strong. The JDB attorney just keeps ignoring the arb demand I sent before they even filed suit. Hopefully that will work in my favor when I get my back off the ropes. Thank you again. I will keep you all posted! 

From the case I quoted below

 

The Federal Arbitration Act (FAA), 9 U.S.C.A. §§ 1-16, and the nearly 312*312 identical New Jersey Arbitration Act, N.J.S.A. 2A:23B-1 to -32, enunciate federal and state policies favoring arbitration. Concepcion, supra, 563 U.S. at___, 131 S.Ct. at 1745, 179 L.Ed.2d at 751 (describing Section 2 of FAA as reflecting "a `liberal federal policy favoring arbitration'" (quoting Moses H. Cone Mem'l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765, 785 (1983))); Hojnowski v. Vans Skate Park, 187 N.J. 323, 342, 901 A.2d 381 (2006) (noting that Legislature, in enacting New Jersey's Arbitration Act, codified existing judicial policy favoring arbitration as "means of dispute resolution"); Martindale v. Sandvik, Inc., 173 N.J. 76, 92, 800 A.2d 872 (2002) ("[T]he affirmative policy of this State, both legislative and judicial, favors arbitration as a mechanism of resolving disputes.")..

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On 9/3/2020 at 1:44 PM, Racinghart03 said:

@fisthardcheese Thank you. Still looking for some supporting case law for the other arguments but if I cant find what I want to add, I have enough to submit. I feel the brief was strong. The JDB attorney just keeps ignoring the arb demand I sent before they even filed suit. Hopefully that will work in my favor when I get my back off the ropes. Thank you again. I will keep you all posted! 

The case law you are looking for is the burden or requirements of Summary Judgement.  There should be plenty of cases where the judge stated that summary judgement is denied due to a genuine dispute still in question.

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