Onelawsuitman

Being sued by the stinger twins Ohio

Recommended Posts

I am being sued by the stinger twins with L\/N\/ in Greene Co Ohio. This is for a debt from fingerhut. I was notified in January and responded back with a MTD (motion to dismiss I assume) because failure to state a claim which relief can be granted. The only attached document to the lawsuit was 1 billing statement. They replied back because they are suing they have a claim. So it was denied. So I did reply to the charges with denial on everything as they did not provide ownership of the debt. I got the 1st set of interrogatories and admissions. This is where I found this site and requesting Arb. I have to send out the answers today, but I was also going to file the MTC (motion to compel?) Arb today as well.

Does anyone know if it is too late? From what I have seen in the local court rules, it doesn't look like it is too late to file a motion. But I hope I'm not too far into the process to initiate this, as I just learned this was a thing.

 

I was going off of others and was going to answer all the requests with an OBJECTION.  Arbitration has been elected, and a jurisdictional motion is pending in this court.  The scope of discovery is to be determined by the arbitration forum. from MikeS in another recent post. 

Should I add anything else to the answers if the motion is denied? We do have the case on the docket in august right now as well.

I've also added the terms and conditions I found on FH's website.

Sorry for all the crappy names, but I did this to protect the googles. 

webbank-fingerhut-credit-agreement2.pdf

Share this post


Link to post
Share on other sites

Normally, it is NOT too late if you have not already filed an answer.

The only restriction I can find is they cannot use arbitration in small claims, but you can.  

File an MTC along with your answer, and include an affirmative defense of improper venue.

Realize that some judges just do whatever they feel like doing, no matter what the law actually says.

  • Like 1

Share this post


Link to post
Share on other sites

If it were me personally, i would file a MTD lack of jurisdiction on the subject matter based on this portion of the agreement:

By accepting this Agreement, unless you opt out by following the instructions below, you agree that either you or we, at our sole discretion, can choose to have any dispute arising out of or relating to this Agreement or our relationship resolved by binding arbitration. If arbitration is chosen by any party, neither you nor we will have the right to litigate that dispute in court or to have a jury trial on that dispute

  • Like 1

Share this post


Link to post
Share on other sites

Can I file a 2nd motion to dismiss? If so I do agree that would be better, but I just wasn't sure.

 

And thank you for your responses BTW.

Edited by Onelawsuitman
adding a thanks

Share this post


Link to post
Share on other sites
58 minutes ago, Robby8900 said:

If it were me personally, i would file a MTD lack of jurisdiction on the subject matter based on this portion of the agreement:

By accepting this Agreement, unless you opt out by following the instructions below, you agree that either you or we, at our sole discretion, can choose to have any dispute arising out of or relating to this Agreement or our relationship resolved by binding arbitration. If arbitration is chosen by any party, neither you nor we will have the right to litigate that dispute in court or to have a jury trial on that dispute

I disagree with this one.  Unless the OP started in arbitration before the case was filed.  It is doubtful that a MTD would be granted, while an MTC would probably be granted, unless the judge ignores the law.

One possibility is a combination of:

1. An answer, with lack of venue as an affirmative defense

2. A MTD for improper venue, and

3. An MTC.  The idea is if the MTD is not granted (and it almost certainly won't be), the MTC is filed as an alternative to the MTD.

 

I wouldn't file a second MTD, though, at least not as a standalone filing.  

  • Like 1

Share this post


Link to post
Share on other sites
2 minutes ago, BackFromTheDebt said:

I disagree with this one.  Unless the OP started in arbitration before the case was filed.  It is doubtful that a MTD would be granted, while an MTC would probably be granted, unless the judge ignores the law.

One possibility is a combination of:

1. An answer, with lack of venue as an affirmative defense

2. A MTD for improper venue, and

3. An MTC.  The idea is if the MTD is not granted (and it almost certainly won't be), the MTC is filed as an alternative to the MTD.

 

I wouldn't file a second MTD, though, at least not as a standalone filing.  

Just so I play this out correctly, I will submit the answers to the plaintiff. I'm assuming they get the actual notarized copy and then send a copy to the courts as well. 

Go to the courts to get the motions time stamped and submitted, and give them the MTD 1st then MTC. Just in case timing of things matter.

In a second letter to the plaintiff, send them the MTD, and then 3rd letter the MTC. 

Or should I hold off on the MTC until it's approved or denied.

I'm guessing both motions should be pretty similar, but one just saying dismiss and other compel.  

Share this post


Link to post
Share on other sites
31 minutes ago, Onelawsuitman said:
 
 

Can I file a 2nd motion to dismiss? If so I do agree that would be better, but I just wasn't sure.

 

And thank you for your responses BTW.

i believe you can file  second MTD, the basis are different. There is a lady on his forum here in ohio that just did this. if you didn't opt out, the plaintiff, had no business fling a complaint in court.  

  • Like 1

Share this post


Link to post
Share on other sites

I think I have it down to a Motion to Compel arbitration and dismiss the plaintiff's charges. 

Would going this way be the best route then? Would this be a twofer, as in the compel can be granted and dismiss denied, or is it an all or nothing deal?

 

Thank you all who have answered and helped me with this info. Hopefully it can also help others in the future.

Share this post


Link to post
Share on other sites

 

https://www.jacksonlewis.com/sites/default/files/docs/Compelling and Staying Arbitration in Ohio.pdf

Ohio rules:

2711.02 Court may stay trial..

(B) If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement, provided the applicant for the stay is not in default in proceeding with arbitration.

(C) Except as provided in division (D) of this section, an order under division (B) of this section that grants or denies a stay of a trial of any action pending arbitration, including, but not limited to, an order that is based upon a determination of the court that a party has waived arbitration under the arbitration agreement, is a final order and may be reviewed, affirmed, modified, or reversed on appeal pursuant to the Rules of Appellate Procedure and, to the extent not in conflict with those rules, Chapter 2505. of the Revised Code.

Federal Arbitration Act:

§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.

(July 30, 1947, ch. 392, 61 Stat. 670.)

Derivation
Act Feb. 12, 1925, ch. 213, §3, 43 Stat. 883.

§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. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.

(July 30, 1947, ch. 392, 61 Stat. 671; Sept. 3, 1954, ch. 1263, §19, 68 Stat. 1233.)

  • Like 1

Share this post


Link to post
Share on other sites
5 hours ago, BackFromTheDebt said:

Normally, it is NOT too late if you have not already filed an answer.

The only restriction I can find is they cannot use arbitration in small claims, but you can.  

File an MTC along with your answer, and include an affirmative defense of improper venue.

Realize that some judges just do whatever they feel like doing, no matter what the law actually says.

Was rereading everything to make sure I got it all correct and I have already filed my answer, as that needed to be done back in March/April. I am still going to file the dismissal and/or stay. So I hope by filing my answer already it  doesn't make it too late for this. I was not provided the card agreement with the filing and I am attaching it as an exhibit, with an affidavit of authentication.  

Share this post


Link to post
Share on other sites

Check your rules for amended pleadings. 

RULE 15. Amended and Supplemental Pleadings

(E) Supplemental pleadings. Upon motion of a party the court may, upon reasonable
notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth
transactions or occurrences or events which have happened since the date of the pleading sought
to be supplemented. Permission may be granted even though the original pleading is defective in
its statement of a claim for relief or defense. If the court deems it advisable that the adverse party
plead to the supplemental pleading, it shall so order, specifying the time therefor.

  • Like 1

Share this post


Link to post
Share on other sites

No, you have not gone too far in litigation for arb, especially if you object to their discovery.  See the case Land v. Byrider for an analysis of waiving arb rights by going too far in a court case.

Be sure to ask for a stay pending arb, as the arb law is very strong on this. It mandates a stay if the case is subject to arbitration.

 

  • Like 2

Share this post


Link to post
Share on other sites

I did the stay and was waiting for the courts to decide how it went before posting, but the attorney called me back and really didn't want to use arb. I didn't want to push it further and test my luck with anything so we will settle for about half. Thank you to everyone for the help.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.