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Being sued by Midland Credit Management (Capital One)


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2 minutes ago, key22 said:

@Bulldoger  thanks i  was just wanting to make sure i had this correct so i should follow the  MTC like Western Sky and do the ORDER TO COMPEL ARBITRATION AND STAY PROCEEDINGS..... or all i need to file in is the the order ...i am thinking you mean both of these things need to be done....




General Statutes of North Carolina

Chapter 1 - Civil Procedure


Article 45C - Revised Uniform Arbitration Act

Section 1-569.6 - Validity of agreement to arbitrate(a) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for revoking a contract.

5. Section 1-569.7 - Motion to compel or stay arbitration(a) On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement:(1) If the refusing party does not appeal or does not oppose the motion, the court shall order the parties to arbitrate.


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15 minutes ago, key22 said:

hey to add to this i was reading the other informtion you sent and this got me to thinking


Very Important Note:  It is imperative that when you file an answer, you mention arbitration as a defense.  In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration.  In your answer, after you deny all allegations in the complaint, you should create a new section with the following title:  Affirmative Defense”.  Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”. ........so when i filed my answer i do a affirmative defense but but it did not have anything in there about  Arb.  does this mean i cant do it now

You may have to amended answer including this defense along with you MTC got wife calling got to go. Will check latter of you can check rules below and see if you have to. 



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A party does not necessarily waive arbitration by: Filing court pleadings (see Cyclone Roofing, 321 S.E.2d at 877). Engaging in discovery (see Servomation Corp. v. Hickory Constr. Co., 342 S.E.2d 853, 854 (1986)). A party asserting the other party waived arbitration must demonstrate both that: The other party took action inconsistent with the intent to arbitrate. The party suffered prejudice by the other party’s delay in seeking arbitration. (See Town of Belville, 796 S.E.2d at 821; Sturm v. Schamens, 392 S.E.2d 432, 433 (N.C. Ct. App. 1990).) 

The courts find waiver where a party: Takes advantage of discovery methods unavailable in arbitration (asking for documents is rule 22(a) in AAA) (see Prime S. Homes, Inc. v. Byrd, 401 S.E.2d 822, 826 (N.C. Ct. App. 1991)). Forces the opposing party to incur significant expense participating in litigation procedural processes  (in this case it was 30K)(see Town of Belville, 796 S.E.2d at 821-22 (N.C. Ct. App. 2017)).


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