Michigan Case - Should I File Motion to Dismiss (or) Motion for Summary Judgment?

[jgnewbie]

I provided the State of Michigan court (e.g., state district court) with an answer to a complaint brought against me by Midland Credit Management LLC. The answer to the complaint also stated my affirmative defenses which were:

(1) Stale Affidavit pursuant to MCL 600.2145. I am relying on this affirmative defense because the affidavits provided by the plaintiff were over 200 days old which is beyond the 10 day timeframe in the state of Michigan pursuant to MCL 600.2145.

(2) Arbitration Agreement Bars Bringing Suit. I am relying on this affirmative defense because after looking over the credit card agreement from the card issuer who sold the debt to Midland Credit Management LLC I noticed in the card agreement that there is an arbitration provision. I provided a copy of this agreement via Exhibit along with the answer to the complaint and affirmative defenses.

(3) Failure to Establish a Claim for Breach of Contract.

I am now waiting to have a pretrial conference in a week and wanted to know which of of the following should I file: (#1) Motion to Dismiss [or] (#2) Motion for Summary Judgment?

The reason I am confused is because I read this https://get.courtroom5.com/the-motion-to-dismiss-or-the-motion-for-summary-judgment-know-the-difference/ article about the differences between motions to dismiss versus motions for summary judgment and when it is best to use one versus the other and I am in need of further clarification so that I can prepare things.

[BackFromTheDebt]

Perhaps file a MTC instead. 

[jgnewbie]

Thank you so much for the reply BackFromTheDebt. By MTC you mean a motion to compel arbitration? Do you think I should just use one of my affirmative defenses by filing a motion to compel arbitration in which I would only be relying on that affirmative defense or would filing a motion for summary judgment and relying on both the stale affidavit and arbitration provisions in the card agreement increase my chances of success?

Also I am wondering what your thoughts are on the following. The Michigan Court Rules (MCR) address summary disposition in MCR 2.116. In MCR 2.116 (C) which addresses the permissible grounds for filing a motion for summary judgment I notice that there are 10 total grounds which may be relied on when filing a motion for summary judgment. I can match ground #7 located at MCR 2.116 (C)(7) with the agreement to arbitrate but am unable to match any of the other grounds to the stale affidavit and wanted your opinion on which of the grounds listed on MCR 2.116 (C) would match with the stale affidavit?

[BV80]

4 hours ago, jgnewbie said:

Thank you so much for the reply BackFromTheDebt. By MTC you mean a motion to compel arbitration? Do you think I should just use one of my affirmative defenses by filing a motion to compel arbitration in which I would only be relying on that affirmative defense or would filing a motion for summary judgment and relying on both the stale affidavit and arbitration provisions in the card agreement increase my chances of success?

Also I am wondering what your thoughts are on the following. The Michigan Court Rules (MCR) address summary disposition in MCR 2.116. In MCR 2.116 (C) which addresses the permissible grounds for filing a motion for summary judgment I notice that there are 10 total grounds which may be relied on when filing a motion for summary judgment. I can match ground #7 located at MCR 2.116 (C)(7) with the agreement to arbitrate but am unable to match any of the other grounds to the stale affidavit and wanted your opinion on which of the grounds listed on MCR 2.116 (C) would match with the stale affidavit?

I believe @Clydesmomis originally from MI. 

[Brotherskeeper]

9 hours ago, jgnewbie said:

(1) Stale Affidavit pursuant to MCL 600.2145. I am relying on this affirmative defense because the affidavits provided by the plaintiff were over 200 days old which is beyond the 10 day timeframe in the state of Michigan pursuant to MCL 600.2145.

It appears you are being sued on an account stated cause of action. Did you submit your own properly prepared affidavit of denial (per MCL 600.2145) with your Answer? 

[jgnewbie]

I submitted my answer and affirmative defenses all in one shot but did not submit an affidavit of denial. What do you think will happen since I did not submit the affidavit of denial?

[Brotherskeeper]

On 12/31/2020 at 2:09 AM, jgnewbie said:

(2) Arbitration Agreement Bars Bringing Suit. I am relying on this affirmative defense because after looking over the credit card agreement from the card issuer who sold the debt to Midland Credit Management LLC I noticed in the card agreement that there is an arbitration provision. I provided a copy of this agreement via Exhibit along with the answer to the complaint and affirmative defenses.

What credit card is this?

Where did you obtain a copy of the cardmember agreement you attached as an exhibit?

Are you certain that the agreement you submitted is the correct agreement for the type of card you had and is from the time period when your account was still in good standing? 

Are the lawyers representing plaintiff the Midand in-house lawyers from Warren? 

Have you read any of the Michigan threads with sample motions to compel arbitration, motion affidavits, notice and hearing form, proposed judge's order form, certificate of service, etc. on this site? 

 

Here is the beginning of the Michigan MTCA that has been successful for some recent posters. Notice that the motion is brought under MCR 2.116(C)(7).

 

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALERNATIVE, STAY PROCEEDINGS PENDING ARBITRATION,

     NOW COMES <<name here>>, Defendant pro se, and hereby moves this Honorable Court to compel private contractual arbitration based on the <<credit card issuer name>> Cardholder Agreement, (" the Agreement"), pursuant to MCR 2.116(C)(7), MCR 2.119, the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq., and the Michigan Uniform Arbitration Act, MCL 691.1681- 1713, as grounds and authority, and states the following:

[jgnewbie]

Thanks so much for the reply Brotherskeeper. The credit card is a Credit One Bank credit card. I obtained the credit card agreements in three different ways in order to confirm things. One way was by researching the CFPB's credit card agreement archive database https://www.consumerfinance.gov/credit-cards/agreements/, another way was by calling the credit card issuer and speaking to a very unknowledgeable representative then lastly by looking at the card issuer's website which contains a archive database of their current and old card agreements and matching it to the one I found on the CFPB's archive database. I am almost certain that the card agreement is the correct card agreement but the "almost certain" part is an almost just because of my high level of OCD I have in daily life matters. The lawyers representing Midland are in fact their in-house counsel and from the east side of Michigan located in Warren, MI and Troy, MI from the looks of their state of Michigan bar registration business address info. I have not read any of the Michigan threads yet, would you please be able to reply with a link to one of these threads you are referring to?

Is the fact that when I submitted the answer along with the affirmative defenses without an affidavit going to be a huge issue going forward whether I file a Motion to Dismiss, Motion for Summary Judgment or a Motion to Compel Arbitration?

If I file a Motion to Compel Arbitration would I be doing away with my ability to use the defense of the stale affidavits under MCL 600.2145? Should I just file a motion that addresses both the arbitration and the stale affidavit under MCL 600.2145 and if so what type of motion would this be (e.g., Motion to Dismiss, Motion for Summary Judgment or Motion to Compel Arbitration and "SOMETHING ABOUT STALE AFFIDAVIT")?

[Brotherskeeper]

6 hours ago, jgnewbie said:

lastly by looking at the card issuer's website which contains a archive database of their current and old card agreements and matching it to the one I found on the CFPB's archive database.

Do the arbitration provisions in any of these agreements you've checked differ in any way? 

In your Answer's Affirmative Defense section, exactly how did you refer to the Credit One Bank card agreement you attached as your exhibit? Did you state how you got a copy of this agreement? Did you state that it was a "correct or true copy" attached as Exhibit ___? 

Does the APR in your attached agreement exhibit match the the interest rate on any monthly statement Midland submitted to the court? 

[Brotherskeeper]

6 hours ago, jgnewbie said:

but the "almost certain" part is an almost just because of my high level of OCD I have in daily life matters.

Forget perfection. Excellence will do. 

In fact, with Midland's often sloppy and overworked inhouse team, "good enough" will likely suffice. No guarantee, though. 

This Midland team of lawyers has seen this forum's motion to compel arb template many times in the past few years. They may try to argue against it or not, and the argument is usually rather weak. Someitmes they dismiss without prejudice; sometimes, if the MTC is granted, they negotiate a mutual walkaway. Again, no guarantee as we haven't seen any of your documents and can't know your judge. 

[Brotherskeeper]

7 hours ago, jgnewbie said:

Is the fact that when I submitted the answer along with the affirmative defenses without an affidavit going to be a huge issue going forward whether I file a Motion to Dismiss, Motion for Summary Judgment or a Motion to Compel Arbitration?

If you did not have the option to arbitrate, then I'd suggest you file an amended answer with an affidavit denying the account stated. (IANAL) In Michigan, the "motion to compel private/contractual arbitration and dismiss, or in the alternative, stay the case pending arbitration" is brought under a summary disposition ground MCR 2.116(C)(7) and the FAA as authority. 

 

7 hours ago, jgnewbie said:

If I file a Motion to Compel Arbitration would I be doing away with my ability to use the defense of the stale affidavits under MCL 600.2145? Should I just file a motion that addresses both the arbitration and the stale affidavit under MCL 600.2145 and if so what type of motion would this be (e.g., Motion to Dismiss, Motion for Summary Judgment or Motion to Compel Arbitration and "SOMETHING ABOUT STALE AFFIDAVIT")?

(I am not a lawyer!) An otherwise properly drafted, valid but  "stale affidavit" (not signed within 10 days of filing per MCL 600.2145), is not an affirmative defense for you. It doesn't mean the affidavit is no good.  It's complicated, but an affidavit of the account (with an account statement attached) on an account stated cause of action is basically a time-saver for the plaintiff for a default judgment or to a quick filing of summary disposition. It is viewed by the court as prima facie evidence (evidence sufficient to establish a fact or to raise a presumption of fact unless rebutted) of the existence of the acount and the amount claimed as due. Unless you answer and file your own affidavit denying the account as stated, or the amount, or stating facts that show you disputed the account or amount, the presumption is with the plaintiff. Without having filed your own affidavit, you would still be able to rebut the presumption if you had some solid rebuttal evidence against that presumption. If you successfully argue that the staleness of plaintiff's affidavit robs it of its prima facie status, then plaintiff must continue on to offer up competent evidence to satisfy its burden in order to prevail. 

If you plan to file a MTC arb, you do not want to engage in any other court motion process or you could waive your rights to arb. The stale affidavit argument is for court. You have the best chance here by electing arbitration and filing a motion to compel. This is my opinion--but I haven't seen any of the documents or the exhibits Midland and you submitted. 

[Brotherskeeper]

@jgnewbieDoes your copy of the Credit One Bank agreement have this paragraph? If so, I believe it is still the case that AAA will decline to accept a claim with Midland as the Respondent without your obtaining the judge's order on your MTC first. If this is still current info, Midland is not in compliance with AAA's requirements. 

"Initiation of Arbitration: The arbitration shall be administered by the American Arbitration Association (“AAA”) before a single arbitrator under the
AAA’s Consumer Arbitration Rules, or by a mutually agreeable administrator, before a single arbitrator, as modified by this arbitration provision.
Information about the arbitration process for AAA can be obtained from the AAA at www.adr.org. The arbitrator shall be selected from the AAA (or
mutually agreeable administrator) panel of neutrals then active on the roster maintained by the AAA (or mutually agreeable administrator) office
located in the city of or nearest to your billing address and, unless otherwise mutually agreed, the arbitrator shall be a retired federal judge, a retired
state appellate judge, a retired state trial judge, or a lawyer with at least 15 years of experience in that order of preference.
In the event that the AAA or mutually agreeable administrator is unable or unwilling to handle the Claim for any reason, then the matter shall be
arbitrated instead by a neutral arbitrator selected by agreement of the parties (or, if the parties cannot agree, selected by a court in accordance with
the FAA)."

[Brotherskeeper]

10 hours ago, jgnewbie said:

I have not read any of the Michigan threads yet, would you please be able to reply with a link to one of these threads you are referring to?

This thread has some helpful info and draft document examples, but the poster made a lot of careless mistakes that needed repeated corrections. Those mistakes and corrections are confusing to read. BitsyM is another Michigan poster who split up her case history into several threads. You can try to look up her threads from her 2 lawsuits in the search box. 

https://www.creditinfocenter.com/community/topic/331200-being-sued-by-cavalry-synchrony-bank-in-mi/#comments

 

This Michigan thread by CandyCLC is an epic 15 pages long! This poor woman needed a lot of help and emotional support to get her to her finish line-a negotiated settlement, not a mutual walkaway with no payment. If you can stay with it, you will learn a lot. I hope. 

https://www.creditinfocenter.com/community/topic/329568-lvnv-summons/#comments

 

[Brotherskeeper]

@jgnewbie This long thread by @LabLady contains valuable info and draft documents in case Midland decides to oppose your MTC. LabLady put in a lot of effort and fought every step of the way to a successful outcome. 

 

[jgnewbie]

On 1/2/2021 at 3:32 PM, Brotherskeeper said:

This thread has some helpful info and draft document examples, but the poster made a lot of careless mistakes that needed repeated corrections. Those mistakes and corrections are confusing to read. BitsyM is another Michigan poster who split up her case history into several threads. You can try to look up her threads from her 2 lawsuits in the search box. 

https://www.creditinfocenter.com/community/topic/331200-being-sued-by-cavalry-synchrony-bank-in-mi/#comments

 

This Michigan thread by CandyCLC is an epic 15 pages long! This poor woman needed a lot of help and emotional support to get her to her finish line-a negotiated settlement, not a mutual walkaway with no payment. If you can stay with it, you will learn a lot. I hope. 

https://www.creditinfocenter.com/community/topic/329568-lvnv-summons/#comments

 

Thanks a lot for taking the time guide me through this and help me out. Sorry for the late reply but have been struggling with some medical issues. The pretrial conference I have is coming up soon on the 12th and I wanted to prepare accordingly. I am wondering if you would be open to talking over a call if possible? If you are able to do a call let me know by emailing me at beavetime@gmail.com. I can send you the case files via email if you'd like as well. Let me know what you think of this. 

[admin]

6 hours ago, jgnewbie said:

Thanks a lot for taking the time guide me through this and help me out. Sorry for the late reply but have been struggling with some medical issues. The pretrial conference I have is coming up soon on the 12th and I wanted to prepare accordingly. I am wondering if you would be open to talking over a call if possible? If you are able to do a call let me know by emailing me at beavetime@gmail.com. I can send you the case files via email if you'd like as well. Let me know what you think of this. 

You need to read over the threads - @Brotherskeeper is not a lawyer.  You've been given pretty good information.  

[jgnewbie]

On 12/31/2020 at 12:01 PM, Brotherskeeper said:

It appears you are being sued on an account stated cause of action. Did you submit your own properly prepared affidavit of denial (per MCL 600.2145) with your Answer? 

Here is what I have submitted so far. Also the complaint from Midland is here as well. 

1722606356_MidlandComplaintRedacted.pdf Answer and Affirmative Defenses Redacted.pdf Credit One Bank Cardholder Agreement FINAL.pdf

[jgnewbie]

On 1/2/2021 at 11:06 AM, Brotherskeeper said:

Do the arbitration provisions in any of these agreements you've checked differ in any way? 

In your Answer's Affirmative Defense section, exactly how did you refer to the Credit One Bank card agreement you attached as your exhibit? Did you state how you got a copy of this agreement? Did you state that it was a "correct or true copy" attached as Exhibit ___? 

Does the APR in your attached agreement exhibit match the the interest rate on any monthly statement Midland submitted to the court? 

It seems that all of the provisions for arbitration are the same for all of Credit Bank One's card agreements.

[jgnewbie]

On 1/2/2021 at 11:06 AM, Brotherskeeper said:

Do the arbitration provisions in any of these agreements you've checked differ in any way? 

In your Answer's Affirmative Defense section, exactly how did you refer to the Credit One Bank card agreement you attached as your exhibit? Did you state how you got a copy of this agreement? Did you state that it was a "correct or true copy" attached as Exhibit ___? 

Does the APR in your attached agreement exhibit match the the interest rate on any monthly statement Midland submitted to the court? 

The APRs do not match but I was told by the customer service representatives of the card issuer after a long phone call that the card agreement I had chosen was the correct one because they were the ones who actually told me that this was the card agreement associated with the account in question. 

[Brotherskeeper]

@jgnewbie Like other members here, I'm just a lowly volunteer with no legal background. I help as my time permits. I offer my layperson's perspective and may make suggestions on what I might do if I were in your shoes. I would always--always--verify for myself any advice received on this forum. As such, I try to show or provide links to where I get the information I share here so that it is easy to check for yourself. You are responsible for knowing and correctly using/citing all court rules, Michigan statutes, the FAA §§1-16 et seq., and any court rulings you use as authority or to support an argument. 

According to the Midland Field Data sheet, this account was opened and defaulted upon in 2018. Your Exhibit A Agreement shows "© 2020 Credit One Bank, N.A,"  and both the APR and the late fee amount do not match what is shown on the Credit One Bank monthly statements attached to the complaint. Midland may or may not catch this or bother to refute it since the debt amount is only $588. (IANAL) Your motion to compel should include your notarized affidavit that states the attached agreement (Defendant's Answer Exhibit A) is a true copy of the applicable agreement, or something to that effect. I honestly don't know if you should include where you got this agreement and/or that it was "authenticated as correct" during a telephone call with Credit One Bank. Below are excerpts from your Ex. A agreement that support your MTC and that Midland is bound by this agreement; the disputes between you and plaintiff Midland are within the scope of this agreement and not excluded by it; the agreement is govered by the FAA.  

(Def.'s Ex. A,  pg 6): [You can require them to arbitrate these account disputes.]

"Arbitration Agreement
PLEASE READ CAREFULLY—IMPORTANT—AFFECTS YOUR LEGAL RIGHTS
This agreement to arbitrate provides that you or we can require controversies or disputes between us to be resolved by BINDING ARBITRATION."

(Def.'s Ex. A,  pg 6): [You don't need their consent to arbitrate. This agreement to arbitrate is governed by the FAA.]

"Agreement to Arbitrate: You and we agree that either you or we may, without the other’s consent, require that controversies or disputes between you and us (all of which are called “Claims”), be submitted to mandatory, binding arbitration. This agreement to arbitrate is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the laws of the State of Nevada."

 

(Def.'s Ex. A, pp 6-7): ["We" includes plaintiff as successor to Credit One Bank, NA.]

"For purposes of this agreement to arbitrate, “you” includes you, any co-applicant, any Authorized User (including Additional Cardholders), or anyone else connected with you or claiming through you; and “we” or “us” includes Credit One Bank, N.A., all of its parents, subsidiaries, affiliates,  successors, predecessors, employees, and related persons or entities, and all third parties who are regarded as agents or representatives of us in connection with the subject matter of the claim or dispute at issue." 

(Def.'s Ex. A, pg 7): [Their account stated cause of action is a covered claim under this section.] 

"Covered Claims: Claims subject to arbitration include, but are not limited to, any controversies or disputes arising from or relating in any way to your Account; any transactions involving your Account; any disclosures made to you concerning your Account; any interest, charges, or fees assessed on your Account; any service(s) or programs related to your Account; and, if permitted by the rules of the arbitration forum, any collection of debt related to your Account. Claims also include controversies or disputes arising from or relating in any way to advertising, solicitations, or any application for, approval of, or establishment of your Account. Claims subject to arbitration include any controversies or disputes based on any theory of law, whether contract, tort, statute, regulation, common law, or equity, or whether they seek legal or equitable remedies. All Claims are subject to arbitration whether they arose in the past, may currently exist, or may arise in the future. Arbitration will apply even if your Account is closed, you pay us in full any
outstanding debt you owe, or you file for bankruptcy. Also, controversies or disputes about the validity, enforceability, coverage, meaning, or scope of this agreement to arbitrate or any part thereof are subject to arbitration and are for the arbitrator to decide. Any questions about what Claims are subject to arbitration shall be resolved by interpreting this agreement to arbitrate in the broadest way the law will allow it to be enforced."

(Def.'s Ex. A, pg 7): [Only claims exclusion from this arb agreement is small claims court; you are not in small claims court, so this doesn't apply.]

"Claims Not Covered: Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in the case."

 

(Def.'s Ex. A, pg 8): [This arbitration agreement survives Credit One's termination of and the transfer or sale of this account to another entity.] 

"Survival, Severability, and Amendment of Terms:
Survival. This agreement to arbitrate shall survive changes in the Agreement and termination of the Account or the relationship between you and us, including the bankruptcy of any party and any transfer or sale of your Account, or amounts owed on your Account, to another person or entity. 

Severability. If any part or parts of your agreement to arbitrate are declared unenforceable, then such specific part or parts shall be of no force or effect and shall be severed, but the remainder of this agreement to arbitrate shall continue in full force and effect. If, however, the entire agreement to arbitrate or your waiver of the right to bring or participate in a class or representative action or in consolidation procedures is unenforceable, then the agreement to arbitrate shall be of no force or effect. Notwithstanding the preceding sentence, with respect to California Account Holders, if arbitration is unenforceable, in whole or in part, you and we agree to resolve any Claim by a judicial reference proceeding as described above. 

Amendment in Writing Only. This agreement to arbitrate may not be amended, severed, or waived, except as expressly provided in the Agreement or in a written agreement between you and us."

[Brotherskeeper]

@jgnewbie The draft of your Answer with Affirmative Defenses including arbitration is dated Nov. 2, 2020. I don't know when you actually filed it with the court. It would have been prudent to have filed your motion to compel and scheduled a hearing for it by now. You will likely receive a motion for summary disposition very soon from Midland. You will have the added work load to file a response in opposition to plaintiff's  summary disposition motion, in addition to your MTC papers. 

 

 

 

[jgnewbie]

16 hours ago, Brotherskeeper said:

@jgnewbie The draft of your Answer with Affirmative Defenses including arbitration is dated Nov. 2, 2020. I don't know when you actually filed it with the court. It would have been prudent to have filed your motion to compel and scheduled a hearing for it by now. You will likely receive a motion for summary disposition very soon from Midland. You will have the added work load to file a response in opposition to plaintiff's  summary disposition motion, in addition to your MTC papers. 

 

 

 

The answer and affirmative defenses were filed with the court on 11/04/2020. I have not filed anything else since and neither has Midland filed anything since then as well. The next scheduled hearing is a pre-trial conference on 01/13/2021. Do you think I should file the MTC before the pre-trial conference or wait til after the pre-trial conference? What is the pre-trial conference all about, like what happens during a pre-trial conference and what is the objective of a pre-trial conference? 

[Brotherskeeper]

@jgnewbieThe answers to those questions are in the threads linked to in the posts above. Yes, I and others have indicated that you should have filed a MTC arb very soon after filing your Answer indicating you were using the agreement's arb provision as an affirmative defense. The burden of proof for an affirmative defense is on you, not on the plaintiff. This is also explained in the threads linked to above. Several of the threads above have drafts of all the documents you would need to submit to court and to the plaintiff. You will need to replace the specific details of your case and use the correct quotes from the Credit One Bank agreement. 

https://courts.michigan.gov/Self-help/center/general-information/Pages/General-Civil-Process.aspx

Pretrial Procedures

Pretrial procedures are events designed to conclude or settle a lawsuit without going to trial. These events include various conferences, case evaluation, and mediation. Michigan Court Rules for pretrial procedures are MCR 2.401 through 2.420.

 

Subchapter 2.400 Pretrial Procedure; Alternative Dispute Resolution; Offers of Judgment; Settlements

Rule 2.401 Pretrial Procedures; Conferences; Scheduling Orders

(A) Time; Discretion of Court. At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties, alone or with the parties, appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action.

(B) Early Scheduling Conference and Order.

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. During this conference the court should consider any matters that will facilitate the fair and expeditious disposition of the action, including:

(a) whether jurisdiction and venue are proper or whether the case is frivolous;

(b) whether to refer the case to an alternative dispute resolution procedure under MCR 2.410;

(c) the complexity of a particular case and enter a scheduling order setting time limitations for the processing of the case and establishing dates when future actions should begin or be completed in the case;

(d) disclosure, discovery, preservation, and claims of privilege of ESI;

(e) the simplification of the issues;

(f) the amount of time necessary for discovery, staging of discovery, and any modification to the extent of discovery;

(g) the necessity or desirability of amendments to the pleadings;

(h) the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;

(i) the form and content of the pretrial order;

(j) the timing of disclosures under MCR 2.302(A);

(k) the limitation of the number of expert witnesses, whether to have a separate discovery period for experts, whether to require preparation and disclosure of testifying expert reports, and whether to specify expert disclosure deadlines;

(l) the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;

(m) the possibility of settlement;

(n) whether mediation, case evaluation, or some other form of alternative dispute resolution would be appropriate for the case, and what mechanisms are available to provide such services;

(o) the identity of the witnesses to testify at trial;

(p) the estimated length of trial;

(q) whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by MCR 2.203(A); and

(r) other matters that may aid in the disposition of the action.

[jgnewbie]

On 1/9/2021 at 10:18 AM, Brotherskeeper said:

@jgnewbieThe answers to those questions are in the threads linked to in the posts above. Yes, I and others have indicated that you should have filed a MTC arb very soon after filing your Answer indicating you were using the agreement's arb provision as an affirmative defense. The burden of proof for an affirmative defense is on you, not on the plaintiff. This is also explained in the threads linked to above. Several of the threads above have drafts of all the documents you would need to submit to court and to the plaintiff. You will need to replace the specific details of your case and use the correct quotes from the Credit One Bank agreement. 

https://courts.michigan.gov/Self-help/center/general-information/Pages/General-Civil-Process.aspx

Pretrial Procedures

Pretrial procedures are events designed to conclude or settle a lawsuit without going to trial. These events include various conferences, case evaluation, and mediation. Michigan Court Rules for pretrial procedures are MCR 2.401 through 2.420.

 

Subchapter 2.400 Pretrial Procedure; Alternative Dispute Resolution; Offers of Judgment; Settlements

Rule 2.401 Pretrial Procedures; Conferences; Scheduling Orders

(A) Time; Discretion of Court. At any time after the commencement of the action, on its own initiative or the request of a party, the court may direct that the attorneys for the parties, alone or with the parties, appear for a conference. The court shall give reasonable notice of the scheduling of a conference. More than one conference may be held in an action.

(B) Early Scheduling Conference and Order.

(1) Early Scheduling Conference. The court may direct that an early scheduling conference be held. During this conference the court should consider any matters that will facilitate the fair and expeditious disposition of the action, including:

(a) whether jurisdiction and venue are proper or whether the case is frivolous;

(b) whether to refer the case to an alternative dispute resolution procedure under MCR 2.410;

(c) the complexity of a particular case and enter a scheduling order setting time limitations for the processing of the case and establishing dates when future actions should begin or be completed in the case;

(d) disclosure, discovery, preservation, and claims of privilege of ESI;

(e) the simplification of the issues;

(f) the amount of time necessary for discovery, staging of discovery, and any modification to the extent of discovery;

(g) the necessity or desirability of amendments to the pleadings;

(h) the possibility of obtaining admissions of fact and of documents to avoid unnecessary proof;

(i) the form and content of the pretrial order;

(j) the timing of disclosures under MCR 2.302(A);

(k) the limitation of the number of expert witnesses, whether to have a separate discovery period for experts, whether to require preparation and disclosure of testifying expert reports, and whether to specify expert disclosure deadlines;

(l) the consolidation of actions for trial, the separation of issues, and the order of trial when some issues are to be tried by a jury and some by the court;

(m) the possibility of settlement;

(n) whether mediation, case evaluation, or some other form of alternative dispute resolution would be appropriate for the case, and what mechanisms are available to provide such services;

(o) the identity of the witnesses to testify at trial;

(p) the estimated length of trial;

(q) whether all claims arising out of the transaction or occurrence that is the subject matter of the action have been joined as required by MCR 2.203(A); and

(r) other matters that may aid in the disposition of the action.

Thanks a lot. I am working on finishing the MTC and affidavit which I will actually be submitting to the court tomorrow or Weds morning prior to the pre-trial conference. I just wanted to see if you had any tips on how to handle the pre-trial conference or things to keep in mind to do or not do during the pre-trial conference? 

[Brotherskeeper]

6 hours ago, jgnewbie said:

I just wanted to see if you had any tips on how to handle the pre-trial conference or things to keep in mind to do or not do during the pre-trial conference? 

The linked to threads above have descriptions of what occurred at the poster's pre-trial conference. These are usually quick. The judge wants to know how to schedule the process (discovery, pre-trial motions, etc.) up to trial on the court calendar, and if settlement between the parties may be possible. (IANAL) I would be prepared to discuss your plan to file a motion to compel arb. The judge may ask why you haven't done so before now since you filed your Answer back at the beginning of November. The judge is in charge of the proceeding. You speak to the judge, not the attorney, when the judge asks you questions; you refer to the judge as "Your Honor." This is not the place to argue your case or against the plaintiff's case. I personally would speak as little as possible unless more is necessary to advocate for what you need--like your MTC arb. Good luck.