MikeS

Being sued by Midland Credit Management and Portfolio Recovery Associates in Ohio

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14 minutes ago, nobk4me said:
 
 

Two main points in the plaintiff's brief: 1. The contract excludes collection matters from arb; 2. Defendant failed to initiate the arb case. 

This must be a boilerplate response, as they refer to Discover, _which is not the OC here.

Anyway, with regard to the first issue, their logic is faulty, or maybe they are being deceptive. The contractual language is "We will not require you to arbitrate . . . '  in collection cases.  But you want arb.  It is not a case of them forcing arb on you.  The contract does not say arb can never be used in a collection case at the request of the defendant,  which is how they are twisting this to read.

As to the second issue, there is great case law, Capital One v. Rotman, which held that it is the plaintiff's responsibility to initiate arb. 

He is also twisting the dismissal into  stay,this attorney is pissed. He knows what is coming a dismissal for lack of subject matter jurisdiction, which is different than a MTC. i love the rotman case. 

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2 minutes ago, Robby8900 said:
 
Hey he mentioned MSJ did they file one, and if so did they take leave of court to do so, and the court grant leave. 

He is also twisting the dismissal into  stay,this attorney is pissed. He knows what is coming a dismissal for lack of subject matter jurisdiction, which is different than a MTC. i love the rotman case. 

 

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10 minutes ago, nobk4me said:
 

Two main points in the plaintiff's brief: 1. The contract excludes collection matters from arb; 2. Defendant failed to initiate the arb case. 

This must be a boilerplate response, as they refer to Discover, _which is not the OC here.

Anyway, with regard to the first issue, their logic is faulty, or maybe they are being deceptive. The contractual language is "We will not require you to arbitrate . . . '  in collection cases.  But you want arb.  It is not a case of them forcing arb on you.  The contract does not say arb can never be used in a collection case at the request of the defendant,  which is how they are twisting this to read.

As to the second issue, there is great case law, Capital One v. Rotman, which held that it is the plaintiff's responsibility to initiate arb. 

I thought it seemed like boilerplate too. There are many errors. They claim i didn't file an answer. I did. There we're some grammar issues as well. I must have missed the part where they mentioned Discover.

Should I mention any of these misstatements and misrepresentations in by brief in support?

I agree, "we will not require you to arbitrate" is a sub section and does not supersede "If either you or we make a demand for arbitration, you and we must arbitrate any dispute..." Just because it is not required does not mean it isn't required if it is demanded.

I'll have to look up that case. As I was reading, I was thinking how could I be required to file for arbitration before they filed suit? First, prior to them filing suit I've had no contact with the plaintiff and second, if I believed I owed nothing why would I file for arbitration?

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30 minutes ago, Robby8900 said:
Hey he mentioned MSJ did they file one, and if so did they take leave of court to do so, and the court grant leave. 

He is also twisting the dismissal into  stay,this attorney is pissed. He knows what is coming a dismissal for lack of subject matter jurisdiction, which is different than a MTC. i love the rotman case. 

That was the other thing I highlighted when reading through which led me to believe they just recycle this garbage. They HAVE NOT filed MSJ. 

I assume I most certainly have to correct that blatant misstatement.

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The Rotman case seems to argue that the case should be stayed rather than dismissed. 

"The issue presented in this appeal is whether a defendant may obtain a stay of proceedings pending arbitration without having first initiated the arbitration proceedings. We conclude that the initiation of the arbitration proceedings is not a prerequisite for obtaining a stay of the action pursuant to R.C. 2711.02(B)."

How would I present this case as an argument for my motion to dismiss?

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Just now, MikeS said:

The Rotman case seems to argue that the case should be stayed rather than dismissed. 

"The issue presented in this appeal is whether a defendant may obtain a stay of proceedings pending arbitration without having first initiated the arbitration proceedings. We conclude that the initiation of the arbitration proceedings is not a prerequisite for obtaining a stay of the action pursuant to R.C. 2711.02(B)."

How would I present this case as an argument for my motion to dismiss?

Sorry, I should have finished reading it first. I think this part with additional case law would be important to cite. Even though it still leans towards a stay rather than dismissal it puts the burden on the plaintiff.

"Case law instructs that where a matter is subject to arbitration, “[t]he burden is on the plaintiff to commence the arbitration action, and the parties are obliged to cooperate and respond in a timely manner.” Sexton v. Kidder, Peabody & Co., Inc., 8th Dist. No. 74833, 1999 WL 652028 (Aug. 24, 1999). See also Kessinger v. SR83 Hotel Partners, LLC, 5th Dist. No. 04-CA-83, 2005-Ohio-4110, 2005 WL 1897376, ¶ 17; Johnson v. E. Bay Kia, Inc., S.D.Ala. No. 08-00656-CG-B, 2009 WL 928674, at *1 (Apr. 2, 2009). Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted."

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9 minutes ago, MikeS said:

Sorry, I should have finished reading it first. I think this part with additional case law would be important to cite. Even though it still leans towards a stay rather than dismissal it puts the burden on the plaintiff.

"Case law instructs that where a matter is subject to arbitration, “[t]he burden is on the plaintiff to commence the arbitration action, and the parties are obliged to cooperate and respond in a timely manner.” Sexton v. Kidder, Peabody & Co., Inc., 8th Dist. No. 74833, 1999 WL 652028 (Aug. 24, 1999). See also Kessinger v. SR83 Hotel Partners, LLC, 5th Dist. No. 04-CA-83, 2005-Ohio-4110, 2005 WL 1897376, ¶ 17; Johnson v. E. Bay Kia, Inc., S.D.Ala. No. 08-00656-CG-B, 2009 WL 928674, at *1 (Apr. 2, 2009). Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted."

Yes, that's the relevant part.  Definitely mention all their misrepresentations in your reply.

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2 minutes ago, nobk4me said:
 
 

Yes, that's the relevant part.  Definitely mention all their misrepresentations in your reply.

I'm starting my Brief in Support now and will post it here once I have a draft. Please keep the thoughts coming if you think there's something I most certainly need to put in there. And I know I've mentioned it already but I'm very grateful for all the help so far. I starting to feel like I'm in control of this as opposed to the other way around.

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16 minutes ago, MikeS said:

The Rotman case seems to argue that the case should be stayed rather than dismissed. 

"The issue presented in this appeal is whether a defendant may obtain a stay of proceedings pending arbitration without having first initiated the arbitration proceedings. We conclude that the initiation of the arbitration proceedings is not a prerequisite for obtaining a stay of the action pursuant to R.C. 2711.02(B)."

How would I present this case as an argument for my motion to dismiss?

The attorney know the court is gonna grant your motion to dismiss, however, the last sentence he states, if the court grants your dismissal that the plaintiff, request a stay of the case for 60 days. That's where you ruin his day, with Capital One v. rotman. He will still have to initiate the arbitration clause, its the plaintiffs burden. 

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This was uploaded to the docket today. "Magistrate's Decision".  Not sure what to make of it. I have 14 days to appeal before the Judge renders his ruling. Its guaranteed to go to arbitration but it looks like I'm only getting a Stay. It's also not entirely clear who is responsible for filling for arbitration. Only saying "each party to bear own costs" 

What does everyone think?

Magistrate's decision_Redacted.pdf

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I think it's a good decision.  In my experience, courts rarely dismiss but do grant a stay.  This is in your favor.

Now, who should initiate?  While the Rotman case says that's the plaintiff's responsibility, if you wait for them to do it, they will probably drag their feet, and the July 24 deadline passes with no initiation by either party.  Then the plaintiff can go back to court to lift the stay.  You don't want that. So to be safe you should initiate.

Or you could file objections to the magistrate's decision, citing Rotman, seeking clarification that the plaintiff needs to initiate. But that risks giving the court second thoughts about the whole thing.  I would just initiate the arb.

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1 minute ago, nobk4me said:

I think it's a good decision.  In my experience, courts rarely dismiss but do grant a stay.  This is in your favor.

Now, who should initiate?  While the Rotman case says that's the plaintiff's responsibility, if you wait for them to do it, they will probably drag their feet, and the July 24 deadline passes with no initiation by either party.  Then the plaintiff can go back to court to lift the stay.  You don't want that. So to be safe you should initiate.

Or you could file objections to the magistrate's decision, citing Rotman, seeking clarification that the plaintiff needs to initiate. But that risks giving the court second thoughts about the whole thing.  I would just initiate the arb.

Would it make sense to try to negotiate with Plaintiff attorney in the interim? I agree not to file for arbitration driving up their cost, they agree to file a dismissal with prejudice and their client agrees to close the account. 

Thoughts, suggestions?

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8 minutes ago, nobk4me said:

I think it's a good decision.  In my experience, courts rarely dismiss but do grant a stay.  This is in your favor.

Now, who should initiate?  While the Rotman case says that's the plaintiff's responsibility, if you wait for them to do it, they will probably drag their feet, and the July 24 deadline passes with no initiation by either party.  Then the plaintiff can go back to court to lift the stay.  You don't want that. So to be safe you should initiate.

Or you could file objections to the magistrate's decision, citing Rotman, seeking clarification that the plaintiff needs to initiate. But that risks giving the court second thoughts about the whole thing.  I would just initiate the arb.

 

6 minutes ago, MikeS said:

Would it make sense to try to negotiate with Plaintiff attorney in the interim? I agree not to file for arbitration driving up their cost, they agree to file a dismissal with prejudice and their client agrees to close the account. 

Thoughts, suggestions?

Obviously, I want to limit my own costs in this as its unlikely they will want to go to arbitration and spend a few thousand to collect a on a $1800 debt. Just curious how I can leverage my position.

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It never hurts to negotiate with them.  It they say no, then file the arb. As their costs increase, the more likely they are to drop the case.

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5 minutes ago, nobk4me said:

It never hurts to negotiate with them.  It they say no, then file the arb. As their costs increase, the more likely they are to drop the case.

Just a few follow up questions:

Am I correct from my reading that JAMS seems to be better for consumers as there is a higher cost to creditors? Their filing fee is $1,750.

What seems vague is that while the consumer is maxed at $250 does that mean the creditor has to be $1,500 before anything even begins or would my $250 satisfy the filing and they would just incur the costs after that.

https://www.jamsadr.com/arbitration-fees isnt clear on this.

Also what protections do I have if I file for arbitration and they drop the case and re-file suit later? 

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28 minutes ago, MikeS said:

Just a few follow up questions:

Am I correct from my reading that JAMS seems to be better for consumers as there is a higher cost to creditors? Their filing fee is $1,750.

What seems vague is that while the consumer is maxed at $250 does that mean the creditor has to be $1,500 before anything even begins or would my $250 satisfy the filing and they would just incur the costs after that.

https://www.jamsadr.com/arbitration-fees isnt clear on this.

Also what protections do I have if I file for arbitration and they drop the case and re-file suit later? 

The creditor must pay its own filing fees.  If it fails to do so, the arbitration forum would close the case.  At that point, you could file a motion for sanctions with the court for the creditor’s failure to abide by the court order and request a dismissal with prejudice.  

If the creditor were to simply drop the lawsuit and refile in court, there would still be the issue of its failure to pay the arbitration fees.  Just because they drop the lawsuit in court doesn’t mean the arbitration case you’ve filed is automatically closed.   You would be able to show that you had a previous order to arbitrate, filed, and the creditor failed to pay.  Under those circumstances, I doubt the creditor would refile.  

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16 hours ago, BV80 said:

The creditor must pay its own filing fees.  If it fails to do so, the arbitration forum would close the case.  At that point, you could file a motion for sanctions with the court for the creditor’s failure to abide by the court order and request a dismissal with prejudice.  

If the creditor were to simply drop the lawsuit and refile in court, there would still be the issue of its failure to pay the arbitration fees.  Just because they drop the lawsuit in court doesn’t mean the arbitration case you’ve filed is automatically closed.   You would be able to show that you had a previous order to arbitrate, filed, and the creditor failed to pay.  Under those circumstances, I doubt the creditor would refile.  

Doing some readings on the other threads regarding arbitration it sounds like I dont have to pay the fee at the time of filing to get a case number. 

With that in mind, once the Magistrate's decision is approved by the Judge, it sounds like I should just file for arbitration and then go to the attorney suggesting a mutual dismissal.

Am I correct in thinking this gives me the most strength? 

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33 minutes ago, MikeS said:

Doing some readings on the other threads regarding arbitration it sounds like I dont have to pay the fee at the time of filing to get a case number. 

With that in mind, once the Magistrate's decision is approved by the Judge, it sounds like I should just file for arbitration and then go to the attorney suggesting a mutual dismissal.

Am I correct in thinking this gives me the most strength? 

That sounds about right to me.  Hopefully, @fisthardcheesewill chime in.  

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45 minutes ago, MikeS said:

Doing some readings on the other threads regarding arbitration it sounds like I dont have to pay the fee at the time of filing to get a case number. 

With that in mind, once the Magistrate's decision is approved by the Judge, it sounds like I should just file for arbitration and then go to the attorney suggesting a mutual dismissal.

Am I correct in thinking this gives me the most strength? 

After you file in JAMS, they will email a confirmation and issue a bill for the filing fees to both sides.  You CAN offer a mutual dismissal at this time, but IMO the attorney will force you to pay your $250 in hopes that you don't and they can go back to court and throw you under the buss. Most settlements occur after the filing fees are paid and the arbitrator is chosen and the $2500 bill is sent to the JDB.

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1 minute ago, fisthardcheese said:

After you file in JAMS, they will email a confirmation and issue a bill for the filing fees to both sides.  You CAN offer a mutual dismissal at this time, but IMO the attorney will force you to pay your $250 in hopes that you don't and they can go back to court and throw you under the buss. Most settlements occur after the filing fees are paid and the arbitrator is chosen and the $2500 bill is sent to the JDB.

Thank you. I'm certainly willing to pay $250 to protect my interest. I would guess the JDB is not going to want to pay $2,500 to collect an $1,800 debt.

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23 minutes ago, fisthardcheese said:

After you file in JAMS, they will email a confirmation and issue a bill for the filing fees to both sides.  You CAN offer a mutual dismissal at this time, but IMO the attorney will force you to pay your $250 in hopes that you don't and they can go back to court and throw you under the buss. Most settlements occur after the filing fees are paid and the arbitrator is chosen and the $2500 bill is sent to the JDB.

 

19 minutes ago, MikeS said:

Thank you. I'm certainly willing to pay $250 to protect my interest. I would guess the JDB is not going to want to pay $2,500 to collect an $1,800 debt.

I was re-reading my card member agreement (re-attached so you dont have to scroll all the way back) I first saw the potion which states "If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding"

So I thought maybe I should object to the Magistrate's decision citing this part of the agreement but then as I read further, "....If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith."

So, I retracted my idea to object and I'll wait for the Judge to approve the Magistrate's decision. 

My question is when filing for JAMS I assume I am attaching the court order for arbitration and then I will point out the portion of the agreement that states the JDB will be paying all fees?

I love when you find something new the second time you read something but hate that you didnt see it the first time around.

PRA Card Agreement.pdf

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If they do drop the arbitration but file suit again, it's a case of rinse and repeat. File the MTC again.  When they dismiss a court case the second time, it's with prejudice.

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36 minutes ago, nobk4me said:

If they do drop the arbitration but file suit again, it's a case of rinse and repeat. File the MTC again.  When they dismiss a court case the second time, it's with prejudice.

Sounds good. Just waiting for the Judge to approve the Magistrate's decision.  which says 14 days unless someone objects. I dont know what grounds the JDB would have to object on but I'll cross that bridge if it happens.

I'll update this as soon as something changes.

Thank you all for the help so far. This has really taken away much of the stress.

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Oh If I had seen this was Synchrony I would have said file now.  So, file now.  I wouldn't wait.  It will cost you nothing so why wait?  Even if they appeal - which would be a losing endeavor - you just email JAMS and ask them to put a hold on the case pending the appeal of your MTC.

When I file any arbitration case, I simply include a short and sweet cover letter that says I am submitted a new consumer arbitration case and that the enclosed contract states that the company will pay all arbitration fees and request that JAMS bill the company the full filing fee.  This is all that needs to be said on the matter.  JAMS will properly bill the JDB.

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6 minutes ago, fisthardcheese said:

Oh If I had seen this was Synchrony I would have said file now.  So, file now.  I wouldn't wait.  It will cost you nothing so why wait?  Even if they appeal - which would be a losing endeavor - you just email JAMS and ask them to put a hold on the case pending the appeal of your MTC.

When I file any arbitration case, I simply include a short and sweet cover letter that says I am submitted a new consumer arbitration case and that the enclosed contract states that the company will pay all arbitration fees and request that JAMS bill the company the full filing fee.  This is all that needs to be said on the matter.  JAMS will properly bill the JDB.

I'm guessing the format for a cover letter for JAMS would be something different than what is submitted to courts. Is there a sample out there that I could see for formatting?

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