MTC filed, Attorney asking for Summary Judgment

[KiCkiNGChiCken]

Hello. I'm just wondering if someone can shine a little light. I am being sued by PRA for a CC Debt from Synchrony Bank. After reviewing information on here, I decided to take the MTC route. I was served in August and responded within a week of being served with the MTC. Finally PRA attorney responded a couple weeks with a Summary Judgement. My question is what do I do now? We will go to court February 1st. I haven't proceeded with JAMS or AAA paperwork yet because of me being unsure if it will be granted.

[BackFromTheDebt]

I was in the same situation a few times.  The MSJ should not be heard because there is an MTC which takes precedence.  So object to their MSJ on those grounds.  

[KiCkiNGChiCken]

13 hours ago, BackFromTheDebt said:

I was in the same situation a few times.  The MSJ should not be heard because there is an MTC which takes precedence.  So object to their MSJ on those grounds.  

Thank you for a quick response!  This whole situation has been a pain! Hopefully, they drop it soon.

[Brotherskeeper]

20 hours ago, KiCkiNGChiCken said:

I was served in August and responded within a week of being served with the MTC. Finally PRA attorney responded a couple weeks with a Summary Judgement. My question is what do I do now? We will go to court February 1st.

Is the February 1, 2021 court date a scheduled hearing on your motion to compel?

Do your court rules require you to schedule a hearing on your motion in order for it to be ruled on? And provide a notice of the hearing date and time to the opposing side? 

Did PRA file a response in opposition to your motion to compel arbitration or acknowledge it in any way in PRA's motion for summary judgment? 

[Clydesmom]

22 hours ago, KiCkiNGChiCken said:

I was served in August and responded within a week of being served with the MTC.

But did you file an answer to the suit?  If you only filed the MTC that is the problem.  In SC you have to do both.

22 hours ago, KiCkiNGChiCken said:

Finally PRA attorney responded a couple weeks with a Summary Judgement. My question is what do I do now?

If you didn't file an answer then that is why they moved for summary judgment.  If you did file an answer in addition to the MTC this is not uncommon to use the MSJ as their response to your MTC.  When the hearing happens on Feb. 1 they will argue your MTC should be denied because there are no issues of fact.  Then they will argue that is why the court will deny your motion and grant theirs.  

Did you file an answer?

[KiCkiNGChiCken]

2 hours ago, Brotherskeeper said:

Is the February 1, 2021 court date a scheduled hearing on your motion to compel?

Do your court rules require you to schedule a hearing on your motion in order for it to be ruled on? And provide a notice of the hearing date and time to the opposing side? 

Did PRA file a response in opposition to your motion to compel arbitration or acknowledge it in any way in PRA's motion for summary judgment? 

The hearing in February is for their Motion. I did reply with an Answer as well as the Motion to Compel Arb. I will block out all personal information and post documents below.

[KiCkiNGChiCken]

1 hour ago, Clydesmom said:

But did you file an answer to the suit?  If you only filed the MTC that is the problem.  In SC you have to do both.

If you didn't file an answer then that is why they moved for summary judgment.  If you did file an answer in addition to the MTC this is not uncommon to use the MSJ as their response to your MTC.  When the hearing happens on Feb. 1 they will argue your MTC should be denied because there are no issues of fact.  Then they will argue that is why the court will deny your motion and grant theirs.  

Did you file an answer?

Yes I filed an answer as well as the MTC

[Clydesmom]

All right if you filed an answer and the MTC then you need to file a response to their MSJ immediately.  You object based on your MTC takes priority and that the card agreement states that the proper forum for settling disputes is arbitration.  If you don't oppose that motion you give them leverage to prevail on this.

[KiCkiNGChiCken]

1 minute ago, Clydesmom said:

All right if you filed an answer and the MTC then you need to file a response to their MSJ immediately.  You object based on your MTC takes priority and that the card agreement states that the proper forum for settling disputes is arbitration.  If you don't oppose that motion you give them leverage to prevail on this.

Hopefully you know the answer to this. Do I just need to write a letter to the court and their lawyer, just stating that I am objecting or is it another motion I need to file? I have no experience with any of this whatsoever. Thanks for your help.

[BV80]

2 hours ago, Clydesmom said:

But did you file an answer to the suit?  If you only filed the MTC that is the problem.  In SC you have to do both.

In SC, one does not have to file an answer along with a MTC.  While it doesn’t hurt to do so, it’s not required.

“In lieu of answering Stokes' complaint, the defendants filed a motion to compel arbitration and stay proceedings pursuant to the Federal Arbitration Act.” Stokes v. Metro. Life Ins. Co., 351 S.C. 606, 609, 571 S.E.2d 711, 713 (Ct.App.2002). "As the FAA applies to all of Stokes' causes of action, all related state court proceedings are stayed pending resolution of the arbitration.” Id at 612.

[Clydesmom]

46 minutes ago, BV80 said:

In SC, one does not have to file an answer along with a MTC.

Good to know.

54 minutes ago, KiCkiNGChiCken said:

Hopefully you know the answer to this. Do I just need to write a letter to the court and their lawyer, just stating that I am objecting or is it another motion I need to file?

It is an opposition to their motion.  Under no circumstance is a "letter to the court" appropriate and cannot be considered.

[KiCkiNGChiCken]

14 minutes ago, Clydesmom said:

Good to know.

It is an opposition to their motion.  Under no circumstance is a "letter to the court" appropriate and cannot be considered.

Well, I figured it out! Working on document now.

 

 

[KiCkiNGChiCken]

1 hour ago, Clydesmom said:

Good to know.

It is an opposition to their motion.  Under no circumstance is a "letter to the court" appropriate and cannot be considered.

This is what I have so far..... Am I on the right track?

[Brotherskeeper]

On 12/29/2020 at 11:52 AM, Brotherskeeper said:

Did PRA:

1.)  file a response in opposition to your motion to compel arbitration or,

2.)  acknowledge it in any way in PRA's motion for summary judgment? 

If you answered this, I'm sorry, I missed it. 

[KiCkiNGChiCken]

5 hours ago, Brotherskeeper said:

If you answered this, I'm sorry, I missed it. 

Here's what they sent

[KiCkiNGChiCken]

5 hours ago, Brotherskeeper said:

If you answered this, I'm sorry, I missed it. 

Also, reading the bottom of the document, I believe he's saying that my Affidavit alongside my Answer and MTC wasn't notarized but it was. The court has the original paperwork. The notary stamp was white but you couldn't see it on the documents scanned into their system. I didn't know at the time that I could color over the stamp before I sent the documents to them. I'm assuming that doesn't matter now. I did finish the Opposition and mailed it off today, so fingers crossed!

[Brotherskeeper]

On 12/29/2020 at 11:52 AM, Brotherskeeper said:

Do your court rules require you to schedule a hearing on your motion in order for it to be ruled on? And provide a notice of the hearing date and time to the opposing side? 

Did you check on this to be certain that your motion was properly filed with the court? 

In some states, the rules for motions require you to schedule the hearing date with the clerk and send a notice of the hearing date, time and place to the opposing side. In other states, the judge decides if s/he will rule on the motion papers with or without an oral argument. 

You need to know that your motion is properly before the court. If it isn't, PRA may not have had to address the arbitration issue in its MSJ or file an opposition response to your motion to compel. 

[Brotherskeeper]

@KiCkiNGChiCken 

Did PRA attach a copy of the Synchrony agreement as an exhibit to the complaint for their breach of contract claim? If not, why not? Do your rules require the contract to be attached to the complaint in a breach of contract cause of action or a reason given for why it isn't? My state's rules do. 

You attached a copy of a Synchrony agreement to your answer's affirmative defense section as Exhibit A. You also submitted a notarized affidavit with it. 

13 hours ago, KiCkiNGChiCken said:

I believe he's saying that my Affidavit alongside my Answer and MTC wasn't notarized but it was. The court has the original paperwork. The notary stamp was white but you couldn't see it on the documents scanned into their system.

The MSJ refers repeatedly to the "terms of the agreement" as the basis of its claim, and that you breached those terms. PRA also states that it received a copy of your answer, which includes an copy of a Synchrony agreement attached as Defendant's Exhibit A.  The MSJ attaches, as its MSJ Exhibit B, a copy of your answer.  PRA does not dispute in its MSJ that the copy of the Synchrony agreement you attached to your answer is the applicable agreement to this credit card account.

PRA claims both parties entered into a contract, and are bound by the terms of "the credit agreement." (Most Synchrony agreements state right at the beginning that you are bound by the entire agreement; the agreement contains 4 or 5 sections, plus the application you submitted.) You provided a notarized affidavit that the Synchrony Agreement you attached is the applicable agreement ("contract") to the subject account.  That Synchrony agreement has a binding arbitration provision as part of the terms and conditions. You did not reject the arbitration provision by sending written notice within 45 days of opening the account. "If you don’t reject this Arbitration section, it will be effective as of the date of the Agreement and will supersede any prior arbitration agreement between you and us that would otherwise be applicable."

If PRA claims you are bound by and breached the terms of the Synchrony agreement they failed to attach a copy of to the complaint, or attach to the MSJ, and does not dispute the copy of the Synchrony agreement you attached (with notarized affidavit) to your answer is applicable, then there is no material dispute that your Synchrony agreement governs the account that is the subject of this lawsuit. (I am not a lawyer.) If PRA now tries to claim otherwise, PRA should be required to submit to the court a sworn copy of the "correct" Synchrony agreement. Whether or not that Synchrony agreement PRA should be required to submit contains a binding arbitration section, and the specific terms of that arb provison,  is a material fact that needs to be determined, since you seek to enforce your contractual rights to elect arbitration rather than continue on in court. 

This PRA MSJ may be the boilerplate version that is routinely filed. You did not rely solely on a general denial in your answer and clearly provided facts and sworn documentary evidence to notify plaintiff of your affirmative defense to this action. Your answer also contained your motion to compel plaintiff to arbitrate these disputes according to the terms of the applicable Synchrony account agreement. 

 

[KiCkiNGChiCken]

2 hours ago, Brotherskeeper said:

Did you check on this to be certain that your motion was properly filed with the court? 

In some states, the rules for motions require you to schedule the hearing date with the clerk and send a notice of the hearing date, time and place to the opposing side. In other states, the judge decides if s/he will rule on the motion papers with or without an oral argument. 

You need to know that your motion is properly before the court. If it isn't, PRA may not have had to address the arbitration issue in its MSJ or file an opposition response to your motion to compel. 

Yes, the Motion to Compel is in the records. In SC its not required to have a hearing. Judge can still rule otherwise. Now looking at other cases I think that is just their general response, in hopes of their motion being granted or individual not showing up to court. Which I fully intend to. 

[KiCkiNGChiCken]

11 minutes ago, Brotherskeeper said:

@KiCkiNGChiCken 

Did PRA attach a copy of the Synchrony agreement as an exhibit to the complaint for their breach of contract claim? If not, why not? Do your rules require the contract to be attached to the complaint in a breach of contract cause of action or a reason given for why it isn't? My state's rules do. 

You attached a copy of a Synchrony agreement to your answer's affirmative defense section as Exhibit A. You also submitted a notarized affidavit with it. 

The MSJ refers repeatedly to the "terms of the agreement" as the basis of its claim, and that you breached those terms. PRA also states that it received a copy of your answer, which includes an copy of a Synchrony agreement attached as Defendant's Exhibit A.  The MSJ attaches, as its MSJ Exhibit B, a copy of your answer.  PRA does not dispute in its MSJ that the copy of the Synchrony agreement you attached to your answer is the applicable agreement to this credit card account.

PRA claims both parties entered into a contract, and are bound by the terms of "the credit agreement." (Most Synchrony agreements state right at the beginning that you are bound by the entire agreement; the agreement contains 4 or 5 sections, plus the application you submitted.) You provided a notarized affidavit that the Synchrony Agreement you attached is the applicable agreement ("contract") to the subject account.  That Synchrony agreement has a binding arbitration provision as part of the terms and conditions. You did not reject the arbitration provision by sending written notice within 45 days of opening the account. "If you don’t reject this Arbitration section, it will be effective as of the date of the Agreement and will supersede any prior arbitration agreement between you and us that would otherwise be applicable."

If PRA claims you are bound by and breached the terms of the Synchrony agreement they failed to attach a copy of to the complaint, or attach to the MSJ, and does not dispute the copy of the Synchrony agreement you attached (with notarized affidavit) to your answer is applicable, then there is no material dispute that your Synchrony agreement governs the account that is the subject of this lawsuit. (I am not a lawyer.) If PRA now tries to claim otherwise, PRA should be required to submit to the court a sworn copy of the "correct" Synchrony agreement. Whether or not that Synchrony agreement PRA should be required to submit contains a binding arbitration section, and the specific terms of that arb provison,  is a material fact that needs to be determined, since you seek to enforce your contractual rights to elect arbitration rather than continue on in court. 

This PRA MSJ may be the boilerplate version that is routinely filed. You did not rely solely on a general denial in your answer and clearly provided facts and sworn documentary evidence to notify plaintiff of your affirmative defense to this action. Your answer also contained your motion to compel plaintiff to arbitrate these disputes according to the terms of the applicable Synchrony account agreement. 

 

They also did not attach any agreement. The only things they sent were 2 statements, a paper with the "account information" and a paper in which they say was the signinh of the account being sold to PRA but doesn't mention the account in question at all. 

[Brotherskeeper]

56 minutes ago, KiCkiNGChiCken said:

Yes, the Motion to Compel is in the records. In SC its not required to have a hearing. Judge can still rule otherwise.

Good to know. 

52 minutes ago, KiCkiNGChiCken said:

They also did not attach any agreement.

They did not argue in their MSJ that your sworn copy of the Synchrony agreement is not the correct one for the account, either. Your copy of the Synchrony agreement as the applicable agreement governing the account is undisputed. 

[KiCkiNGChiCken]

On 12/31/2020 at 1:06 PM, Brotherskeeper said:

Good to know. 

They did not argue in their MSJ that your sworn copy of the Synchrony agreement is not the correct one for the account, either. Your copy of the Synchrony agreement as the applicable agreement governing the account is undisputed. 

Finally have an update. We were suppose to have a hearing 2/1/2021, tried to attend virtually. Found out later that the Judge didn't respond to their request so the hearing was canceled. Found out today looking on the court records that the judge accepted the MTC. This is now showing in the records. Do I now proceed with filing with JAMS or AAA? All important info is whited out of course.

[Brotherskeeper]

8 hours ago, KiCkiNGChiCken said:

Found out today looking on the court records that the judge accepted the MTC.

The judge would either grant or deny Defendant's Motion to Compel Private Contractual Arbitration (or however you titled your Motion). What you have posted above appears to be a court-ordered Notice of ADR. Please read it carefully. It directs that the parties "shall" contact the "court-appointed mediator" directly. It mentions a court-mandated fee. Unless I'm mistaken, it is not an order for you to go to JAMS or AAA, which are private companies unrelated to your court. I would check with the clerk to see if this is an error and the status of your Motion to compel. Was PRA's MSJ denied? 

[BV80]

8 hours ago, KiCkiNGChiCken said:

Finally have an update. We were suppose to have a hearing 2/1/2021, tried to attend virtually. Found out later that the Judge didn't respond to their request so the hearing was canceled. Found out today looking on the court records that the judge accepted the MTC. This is now showing in the records. Do I now proceed with filing with JAMS or AAA? All important info is whited out of course.

@Brotherskeeperis correct.  That is not a granting of your MTC.  Notice this phrase in the first sentence: “Pursuant to the South Carolina Alternative Dispute Resolution Rules (SCADR), you are required to participate...”

That court-ordered ADR per SC rules. It is not the private arbitration referenced in contracts.  

[KiCkiNGChiCken]

1 hour ago, Brotherskeeper said:

The judge would either grant or deny Defendant's Motion to Compel Private Contractual Arbitration (or however you titled your Motion). What you have posted above appears to be a court-ordered Notice of ADR. Please read it carefully. It directs that the parties "shall" contact the "court-appointed mediator" directly. It mentions a court-mandated fee. Unless I'm mistaken, it is not an order for you to go to JAMS or AAA, which are private companies unrelated to your court. I would check with the clerk to see if this is an error and the status of your Motion to compel. Was PRA's MSJ denied? 

 

1 hour ago, BV80 said:

@Brotherskeeperis correct.  That is not a granting of your MTC.  Notice this phrase in the first sentence: “Pursuant to the South Carolina Alternative Dispute Resolution Rules (SCADR), you are required to participate...”

That court-ordered ADR per SC rules. It is not the private arbitration referenced in contracts.  

Thanks for all of y'all information. I didn't find out until the morning of 2/1 that the hearing was canceled. I kept trying to connect and attend virtually and after a few tries I called the court, who ended up telling me to call the lawyers office to see if there was a change in the case. Their lawyer's office told me it was canceled because the judge didn't respond to their MSJ. I'm assuming it was just that, neither confirmed or denied. I was just so excited that the paper above mentioned Arbitration. Now, I understand better. Question I have is where do I go from here? Since it says we have 300 days to participate in ADR.