Superdad3d

MTC in Texas help

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I was recently served by Midland for 2 accounts with Synchrony bank in Texas, and after spending days researching on this site and getting familiar with the arbitration strategy, I filed my answer last night (10/5/2020) denying all claims and listed arbitration and award for the affirmative defense. I used the verbiage in the arbitration strategy guide regarding "lack of subject matter jurisdiction".  I keep reading about how Texas has strict requirements for filing motions, but after reading the Texas rules of civil procedure multiple times I'm still not clear exactly what is needed.  I have started preparing the MTC and have replaced the example arbitration clause with Synchrony's clause in my card agreement,  but don't want to leave anything out that would get it denied.    

Do I need to schedule a hearing? Any help would be appreciated.

Also, I filed my answer electronically and elected to serve Midland's attorney using their e-service, but not sure if this replaces the need to send the filed document by certified mail.  Anyone have experience with e-filing that can clarify?

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1 hour ago, Superdad3d said:
 
 

I was recently served by Midland for 2 accounts with Synchrony bank in Texas, and after spending days researching on this site and getting familiar with the arbitration strategy, I filed my answer last night (10/5/2020) denying all claims and listed arbitration and award for the affirmative defense. I used the verbiage in the arbitration strategy guide regarding "lack of subject matter jurisdiction".  I keep reading about how Texas has strict requirements for filing motions, but after reading the Texas rules of civil procedure multiple times I'm still not clear exactly what is needed.  I have started preparing the MTC and have replaced the example arbitration clause with Synchrony's clause in my card agreement,  but don't want to leave anything out that would get it denied.    

Do I need to schedule a hearing? Any help would be appreciated.

Also, I filed my answer electronically and elected to serve Midland's attorney using their e-service, but not sure if this replaces the need to send the filed document by certified mail.  Anyone have experience with e-filing that can clarify?

You need to ask your clerk of court if you must schedule a hearing as each court has its own rules on that.

You don't need to include all of that "verbiage" with your answer.  A simple general denial is efficient.  Some may disagree but I will always say to pay the $6 for a signed certified mail receipt from USPS for their copy of anything you file with the court.  JDB attorneys are among the lowest of the low and will lie or be otherwise deceptive one way or another throughout the case.  When you produce the green card showing a signature of someone in their office they will have a hell of a time convincing the court that they are entitled to a default judgment because they never received an email.

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2 hours ago, Superdad3d said:
 

I was recently served by Midland for 2 accounts with Synchrony bank in Texas, and after spending days researching on this site and getting familiar with the arbitration strategy, I filed my answer last night (10/5/2020) denying all claims and listed arbitration and award for the affirmative defense. I used the verbiage in the arbitration strategy guide regarding "lack of subject matter jurisdiction".  I keep reading about how Texas has strict requirements for filing motions, but after reading the Texas rules of civil procedure multiple times I'm still not clear exactly what is needed.  I have started preparing the MTC and have replaced the example arbitration clause with Synchrony's clause in my card agreement,  but don't want to leave anything out that would get it denied.    

Do I need to schedule a hearing? Any help would be appreciated.

Also, I filed my answer electronically and elected to serve Midland's attorney using their e-service, but not sure if this replaces the need to send the filed document by certified mail.  Anyone have experience with e-filing that can clarify?

I have submitted all my docs to the court without issue using the e-filing. I still went old school with CMRR.  Just make sure you check the status to verify everything was successfully uploaded and received by the court if you are going that  route. I waived oral argument as I felt with my valid arb agreement, there was not much to argue. I can only speak from my limited experience but as others were gracious enough to help me, I am trying to pay it forward. I did get hit with an MSJ after my MTC was submitted, but before it was granted. I took the time, and advice/help from the forum and members to draw up a nice brief in opposition and their MSJ was denied and my MTC granted. I am currently getting my ducks in a row to file with JAMS. Hope this helped. 

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1 hour ago, texasrocker said:

You need to ask your clerk of court if you must schedule a hearing as each court has its own rules on that.

You don't need to include all of that "verbiage" with your answer.  A simple general denial is efficient.  Some may disagree but I will always say to pay the $6 for a signed certified mail receipt from USPS for their copy of anything you file with the court.  JDB attorneys are among the lowest of the low and will lie or be otherwise deceptive one way or another throughout the case.  When you produce the green card showing a signature of someone in their office they will have a hell of a time convincing the court that they are entitled to a default judgment because they never received an email.

Ok thanks I'll ask.  The e-file system shows the attorney was served and the date/time he opened the email, but I may send by mail just for good measure.    

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1 hour ago, Racinghart03 said:

I have submitted all my docs to the court without issue using the e-filing. I still went old school with CMRR.  Just make sure you check the status to verify everything was successfully uploaded and received by the court if you are going that  route. I waived oral argument as I felt with my valid arb agreement, there was not much to argue. I can only speak from my limited experience but as others were gracious enough to help me, I am trying to pay it forward. I did get hit with an MSJ after my MTC was submitted, but before it was granted. I took the time, and advice/help from the forum and members to draw up a nice brief in opposition and their MSJ was denied and my MTC granted. I am currently getting my ducks in a row to file with JAMS. Hope this helped. 

Yeah status shows he was served.  Do I need to send a letter to the attorney stating I elect arbitration with Jams and request dismissal?

For the MTC, was there anything specific that needs to be included? The TAA states:

A court shall order the parties to arbitrate on application of a party showing:
(1) an agreement to arbitrate; and
(2) the opposing party’s refusal to arbitrate.
(b) If a party opposing an application made under Subsection (a) denies the existence of the agreement, the court shall summarily determine that issue. The court shall order the arbitration if it finds for the party that made the application. If the court does not find for that party, the court shall deny the application.
(c) An order compelling arbitration must include a stay of any proceeding subject to Section 171.025.

 

How do I show their refusal to arbitrate in the MTC? Just by the fact they filed suit, or do I need to send the attorney a letter and wait for a response before I file the MTC?

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20 hours ago, Superdad3d said:

Yeah status shows he was served.  Do I need to send a letter to the attorney stating I elect arbitration with Jams and request dismissal?

For the MTC, was there anything specific that needs to be included? The TAA states:

A court shall order the parties to arbitrate on application of a party showing:
(1) an agreement to arbitrate; and
(2) the opposing party’s refusal to arbitrate.
(b) If a party opposing an application made under Subsection (a) denies the existence of the agreement, the court shall summarily determine that issue. The court shall order the arbitration if it finds for the party that made the application. If the court does not find for that party, the court shall deny the application.
(c) An order compelling arbitration must include a stay of any proceeding subject to Section 171.025.

 

How do I show their refusal to arbitrate in the MTC? Just by the fact they filed suit, or do I need to send the attorney a letter and wait for a response before I file the MTC?

@fisthardcheese is the expert on this. Did you get any communications from the attorney before you were served? That would be my question. Since I did, followed up with a DV letter and THEN a letter of demand BEFORE I was served, my timetable of events is different than yours. Did you send a letter or demand? What does your agreement say? This is important too. 

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Not sure. If they did send anything, I might not have opened the mail thinking it was junk mail.  I filed my answer yesterday 10/5/2020 and I sent notice to elect arbitration letter with JAMS to the lawyer using e-service and it shows he was served today 10/6/2020. I did not want to delay filing the MTC so I went ahead and filed it today as well. It included a notarized affidavit, the notice to elect arb letter, and the card agreement(s).  Midland actually is suing for 2 alleged accounts with Synchrony in this case, so I worded the MTC for both agreements - even though they have the same wording.  The agreement is attached. Hope everything was correct! 

Exhibit B - Amazon.com Store Card Account Agreement.pdf

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No need to send an extra letter.  Serving the MTC is the notice to arbitrate.  Serving on the e-file is likely perfectly fine, but there is nothing wrong with also sending a CMRRR copy as a way to have hard proof of service should the unlikely event of them trying to question service comes up.  You don't show their refusal to arbitrate in the MTC.  You only need focus on the very strong case laws in both TX and the US Supreme Court that state that a valid agreement to arbitrate MUST be honored.  You cite those cases, then state that your card agreement has a valid arbitration clause in it (which you back up with your affidavit testifying that the card agreement you submitted as evidence is a true and correct copy of the contract between the parties).

 

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Ok cool. I'm going to send everything CMRR in the morning just to be safe. The sample MTC had that statement about sending the letter to the attorney, so I went ahead and e-served (without filing) a notice to elect arbitration to him this morning.   I filed the MTC this afternoon with all the mentioned documents but didn't have the proposed order in the packet.  I cited my agreement but didn't add specific Texas case law.  Do I need to amend the motion to add the proposed order or can I file it separately now?

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14 hours ago, Superdad3d said:

Do I need to amend the motion to add the proposed order or can I file it separately now?

I doubt it is necessary.  Usually those are just courtesy additions to make it easier for the judge, but double check your court's rules and see if it says the proposed order is a requirement for filing a motion.  If it is REQUIRED, then just print out that single page and bring it to the court and tell the clerk that it was accidentally left off of your filing and ask if they can just add it to your motion in the file.  It is a simple fix if necessary.

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On 10/7/2020 at 5:12 PM, Superdad3d said:

Thanks I called them and they said I could file it separately so I did. I assume I should prepare a response to the MSJ they will likely file? 

Reading up on how to counter an MSJ can't hurt, but you can't really prepare a response until you know what their arguments are going to be. You would have to respond to each point they bring up in an MSJ and respond to each specifically.

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