WillingtoFight593

Motion to Compel South Carolina

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Hello all,

I’ve scoured the forums and cannot seem to find anyone with a motion to compel arbitration that is specific to South Carolina (SC). Anyone have any experience with SC specifically? I have 27 days left to answer and would like to put my MTC with my answer when I file. I will do the homework and try to make it work somehow if I can but I’m having a hard time finding that specific thing or examples on my court’s website. 

Thanks!

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On 11/5/2020 at 9:13 PM, WillingtoFight593 said:
 

Hello all,

I’ve scoured the forums and cannot seem to find anyone with a motion to compel arbitration that is specific to South Carolina (SC). Anyone have any experience with SC specifically? I have 27 days left to answer and would like to put my MTC with my answer when I file. I will do the homework and try to make it work somehow if I can but I’m having a hard time finding that specific thing or examples on my court’s website. 

Thanks!

You simply need to follow your court rules for writing a proper motion.  Credit card agreements are governed by the Federal Arbitration Act, so United States Supreme Court rulings will suffice.  However, here are a couple of South Carolina Supreme Court rulings.

From the South Carolina Supreme Court:

Unless the parties have otherwise contracted, the FAA applies in federal or state court to any arbitration agreement regarding a transaction that involves interstate commerce. Munoz v. Green Tree Fin. Corp., 343 S.C. 531, 538, 542 S.E.2d 360, 363 (2001).

and 

!"`There is a strong presumption in favor of the validity of arbitration agreements because of the strong policy favoring arbitration.'" Bradley v. Brentwood Homes, Inc., 398 S.C. 447, 455, 730 S.E.2d 312, 316 (2012).

Also, here is a “renewed” memo in support of a MTC arbitration.  I think the first one was denied, but the court eventually stayed the lawsuit in favor of arbitration.   If you choose to use any part of it, make sure you don’t mention “furniture”. 

For some reason, I couldn’t post links, so here goes.

Go to the Greenville County government website.

Choose “Popular Services”.  Then choose “Judicial” and “court records search”.

Choose  “accept”.

Then enter case number 2018CP2302230.  Click on any name and choose “Actions”.   In the list, locate the date 09/18/2019.   Then look for “Memo/Memo in Support of Renewed Motion to Compel Arb”.

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On 11/8/2020 at 4:48 PM, BV80 said:

You simply need to follow your court rules for writing a proper motion.  Credit card agreements are governed by the Federal Arbitration Act, so United States Supreme Court rulings will suffice.  However, here are a couple of South Carolina Supreme Court rulings.

From the South Carolina Supreme Court:

Unless the parties have otherwise contracted, the FAA applies in federal or state court to any arbitration agreement regarding a transaction that involves interstate commerce. Munoz v. Green Tree Fin. Corp., 343 S.C. 531, 538, 542 S.E.2d 360, 363 (2001).

and 

!"`There is a strong presumption in favor of the validity of arbitration agreements because of the strong policy favoring arbitration.'" Bradley v. Brentwood Homes, Inc., 398 S.C. 447, 455, 730 S.E.2d 312, 316 (2012).

Also, here is a “renewed” memo in support of a MTC arbitration.  I think the first one was denied, but the court eventually stayed the lawsuit in favor of arbitration.   If you choose to use any part of it, make sure you don’t mention “furniture”. 

For some reason, I couldn’t post links, so here goes.

Go to the Greenville County government website.

Choose “Popular Services”.  Then choose “Judicial” and “court records search”.

Choose  “accept”.

Then enter case number 2018CP2302230.  Click on any name and choose “Actions”.   In the list, locate the date 09/18/2019.   Then look for “Memo/Memo in Support of Renewed Motion to Compel Arb”.

Thank you so much @BV80. I noticed something in the document packet they sent me, in their complaint, they talk about Comenity Capital Bank, how I opened the account with Comenity, they bought an account from Comenity, etc, but their bill of sale is from Synchrony Bank. Is this something I should dispute or mention in some way? Or is it irrelevant that those are two separate banks?

Also, the PayPal Credit agreement states “we do not require you to use arbitration in small claims court.” Does that mean I am not allowed to pursue it or simply that they will not “require me”? And lastly, do I need to submit the agreement from 2014 specifically (the year the account was opened)?

Thank you thank you thank you.

 

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1 hour ago, WillingtoFight593 said:

Thank you so much @BV80. I noticed something in the document packet they sent me, in their complaint, they talk about Comenity Capital Bank, how I opened the account with Comenity, they bought an account from Comenity, etc, but their bill of sale is from Synchrony Bank. Is this something I should dispute or mention in some way? Or is it irrelevant that those are two separate banks?

Here is an article about the sale of PayPal accounts to Synchrony in 2017.

In addition to the roughly $5.8 billion in loans it is buying directly from PayPal, Synchrony will also acquire approximately $1 billion in "participation interests" in PayPal consumer loans from Comenity Capital Bank and a pair of institutional investors. That amounts to roughly 9% of the $76.9 billion in loan balances Synchrony held on its balance sheet at the end of the third quarter.

Synchrony is replacing Comenity, a unit of its rival Alliance Data Systems Corp., as the lender that will issue consumer loans on PayPal's behalf.”

https://www.marketwatch.com/story/paypal-sells-6-billion-of-loans-to-synchrony-2017-11-16

 

1 hour ago, WillingtoFight593 said:

Also, the PayPal Credit agreement states “we do not require you to use arbitration in small claims court.” Does that mean I am not allowed to pursue it or simply that they will not “require me”?

It states that “they” won’t “require” you to arbitrate small claims lawsuits.  Require means that something is compulsory and other things are not allowed.  The fact that they will not require you to arbitrate simply means they will not mandate arbitration in small claims.  In other words, they won’t demand that court is not an option and that you must arbitrate.   It does not mean that you cannot demand it.  
 

1 hour ago, WillingtoFight593 said:

And lastly, do I need to submit the agreement from 2014 specifically (the year the account was opened)?

 

The applicable agreement would be the one that was in effect the last year the account was current and then went into default.  

BTW, who is the plaintiff?

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39 minutes ago, BV80 said:
 

Here is an article about the sale of PayPal accounts to Synchrony in 2017.

In addition to the roughly $5.8 billion in loans it is buying directly from PayPal, Synchrony will also acquire approximately $1 billion in "participation interests" in PayPal consumer loans from Comenity Capital Bank and a pair of institutional investors. That amounts to roughly 9% of the $76.9 billion in loan balances Synchrony held on its balance sheet at the end of the third quarter.

Synchrony is replacing Comenity, a unit of its rival Alliance Data Systems Corp., as the lender that will issue consumer loans on PayPal's behalf.”

https://www.marketwatch.com/story/paypal-sells-6-billion-of-loans-to-synchrony-2017-11-16

 

It states that “they” won’t “require” you to arbitrate small claims lawsuits.  Require means that something is compulsory and other things are not allowed.  The fact that they will not require you to arbitrate simply means they will not mandate arbitration in small claims.  In other words, they won’t demand that court is not an option and that you must arbitrate.   It does not mean that you cannot demand it.  
 

The applicable agreement would be the one that was in effect the last year the account was current and then went into default.  

BTW, who is the plaintiff?

The plaintiff is Portfolio Recovery Associates. The attorneys being Scott & Associates out of Charleston, SC. I will have to see how/where to get my hands on a 2018 agreement. 
 

I’m a little afraid of arbitrating with them after the outcome of catlady22 with PRA but that seems to be due to wording in her agreement which stated they could recoup all fees if they deemed the arbitration “patently frivolous” and there is no such language in my agreement. 

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9 minutes ago, WillingtoFight593 said:

The plaintiff is Portfolio Recovery Associates. The attorneys being Scott & Associates out of Charleston, SC. I will have to see how/where to get my hands on a 2018 agreement. 

It’s probably in the archives of the CFPB credit card agreement database.

https://www.consumerfinance.gov/credit-cards/agreements/

10 minutes ago, WillingtoFight593 said:

I’m a little afraid of arbitrating with them after the outcome of catlady22 with PRA but that seems to be due to wording in her agreement which stated they could recoup all fees if they deemed the arbitration “patently frivolous” and there is no such language in my agreement. 

I believe that was the first time we’ve seen PRA arbitrate.   I honestly think the arbitrator’s opinion would have been reversed upon appeal, but who knows?

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Just now, BV80 said:

It’s probably in the archives of the CFPB credit card agreement database.

https://www.consumerfinance.gov/credit-cards/agreements/

I believe that was the first time we’ve seen PRA arbitrate.   I honestly think the arbitrator’s opinion would have been reversed upon appeal, but who knows?

Thank you. I absolutely would have appealed but that’s just me. I will draw up a motion to compel arbitration based on your very helpful assistance and try my best!

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29 minutes ago, BV80 said:

It’s probably in the archives of the CFPB credit card agreement database.

https://www.consumerfinance.gov/credit-cards/agreements/

I believe that was the first time we’ve seen PRA arbitrate.   I honestly think the arbitrator’s opinion would have been reversed upon appeal, but who knows?

@BV80, I checked the CFPB for 2018 Q1 and Q2 and they have some PayPal agreements (PayPal Extras, PayPal Connect) but none of them are specifically PayPal Credit. I will look through Q3 and Q4 but if they don’t have it I’m not sure where else to look.

 

Yes, please @fisthardcheese! I can also upload redacted versions of what they sent me and whatever I draw up.

 

 

 

 

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22 minutes ago, WillingtoFight593 said:

@BV80, I checked the CFPB for 2018 Q1 and Q2 and they have some PayPal agreements (PayPal Extras, PayPal Connect) but none of them are specifically PayPal Credit. I will look through Q3 and Q4 but if they don’t have it I’m not sure where else to look.

 

Yes, please @fisthardcheese! I can also upload redacted versions of what they sent me and whatever I draw up.

 

 

 

 

Synchrony doesn’t show just a PayPal credit account or something like that?  If you have past PayPal bills, see if they specify the type of account.  

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Just now, BV80 said:

Synchrony doesn’t show just a PayPal credit account or something like that?

Not that I can find. I see PayPal Cashback, PayPal Extras, PayPal Smart Connect, PayPal Start, but no PayPal Credit. I also checked Comenity just to be sure. I see it in the current agreements and it is listed as PayPal Credit, but nothing for 2018.

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18 minutes ago, WillingtoFight593 said:

Additionally, I’m looking at the case you suggested, is it common practice to submit an MTC arb along with a memorandum in support of the MTC? Two separate documents? In this case I see that they are two separate documents but wanted to see if I should also do that?

The reason I provided the link to the doc was because I’ve never filed a MTC.  Check your court rules about motion preparation.  Also be sure to refer to our up-to-date thread on arbitration authored by fisthardcheese.  

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2 minutes ago, WillingtoFight593 said:

Yes I’ve looked at that and will go back and look again. If I can’t find the PayPal Credit agreement for 2018 (last year it was active), can I email PayPal and have them supply it to me?

I suppose you could give it a try.  

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1 minute ago, BV80 said:

I suppose you could give it a try.  

I just don’t know what else to do. I know according to the posts fisthardcheese has made that I need the agreement and a notarized affidavit, so I’m trying to get the exact agreement but it’s not to be found for 2018 in CFPB. 

 

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@fisthardcheese If you could help me out, I don’t see any rules in SC Magistrate Court that states you have to file a memorandum in support of your motion, but it does seem like many cases that file MTC in SC do offer these. Can I just put it all in my MTC, or do you happen to know why they would be filing memorandums of support in addition to the MTC? So appreciate any insight you may have. 

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8 hours ago, WillingtoFight593 said:

The plaintiff is Portfolio Recovery Associates. The attorneys being Scott & Associates out of Charleston, SC. I will have to see how/where to get my hands on a 2018 agreement. 
 

I’m a little afraid of arbitrating with them after the outcome of catlady22 with PRA but that seems to be due to wording in her agreement which stated they could recoup all fees if they deemed the arbitration “patently frivolous” and there is no such language in my agreement. 

Look at catlady22's thread. She updated it with the language of that unfortunate decision.  In it the lousy arbitrator refers to a section of AAA's consumer ruled with regard to frivolous claims and awarding arb fees. I'm not that familiar with AAA.  Maybe it's not just a clause in the cardmember agreement.

I too think the decision would have been reversed on appeal. But this adds another layer of risk and uncertainty to the  arb strategy.  See also some suggestions I made in her thread about making the plaintiff initiate to potentially avoid this.

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14 hours ago, WillingtoFight593 said:

Also, the PayPal Credit agreement states “we do not require you to use arbitration in small claims court.” Does that mean I am not allowed to pursue it or simply that they will not “require me”?

In law, always make sure you are reading things for what they actual say.  It clearly says you will not be required.  So, therefore, you are not REQUIRED.  You can still willingly or voluntarily accept or request arbitration, however.

13 hours ago, WillingtoFight593 said:

I’m a little afraid of arbitrating with them after the outcome of catlady22 with PRA but that seems to be due to wording in her agreement which stated they could recoup all fees if they deemed the arbitration “patently frivolous” and there is no such language in my agreement.

That language is in the AAA rules (and also the JAMS rules).  However, it is my belief that the arbitrator wrongly made that ruling and would have been overturned in an appeal.  Also, some people rush into arbitration rather than trying to take it very slow and methodically as it should be. PRA has followed a couple people into arbitration now, but it is far from consistent as there are also many more people with simultaneous cases who are getting dismissals from PRA in arbitration as well.  The odds are still overwhelmingly in your favor, especially compared to court.  Keep your goal of settlement in mind using multiple speed bumps, rather than beating them in arbitration and you will have a better go at it.

 

10 hours ago, WillingtoFight593 said:

If you could help me out, I don’t see any rules in SC Magistrate Court that states you have to file a memorandum in support of your motion, but it does seem like many cases that file MTC in SC do offer these. Can I just put it all in my MTC, or do you happen to know why they would be filing memorandums of support in addition to the MTC? So appreciate any insight you may have. 

Possibly because most attorneys use templates for types of motions and they will use a template with the highest standards to make it easier.  For instance, all of their motion templates likely conform to Federal Court with the most strict rules, but they use the same ones for Magistrate Court too because why have more than one of the same type.  If you don't see any specific requirement in your Magistrate rules on filing motions, then I would include it within my motion itself - similar to the sample on this site.

 

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This is the answer they use in this magistrate court I am dealing with. Would I just check box A and say it’s the improper place to hear this case due to the arbitration clause in the agreement? I will be putting the MTC arb with the answer and uploading it here when it’s complete, this is just the answer form they gave me.

Thank you guys so much for your help.

@BV80 @fisthardcheese

Nov 13, Doc 1.pdf

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23 hours ago, WillingtoFight593 said:

This is the answer they use in this magistrate court I am dealing with. Would I just check box A and say it’s the improper place to hear this case due to the arbitration clause in the agreement? I will be putting the MTC arb with the answer and uploading it here when it’s complete, this is just the answer form they gave me.

Thank you guys so much for your help.

@BV80 @fisthardcheese

 

I went ahead and made attempts at the MTC and the Answer, if anyone would mind reviewing it...it said "check one" on the answer document so I wasn't sure if I should just do the inappropriate venue bit or if I should also answer each of the allegations in the complaint? I am going to try and file this tomorrow. I still need to work on an affidavit and not sure what the SC ones should look like or what it should say.

SCCA703.pdf MTC.pdf

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