sude by MCM

madaboutu45 · September 7, 2021

In the process of being sued by MCM I’ve already submitted the MTC had court and the judge continued the MTC to October then I received motion for summary judgment dated the same day we went to court i have until the 16th to respond

how should I handle this? what documents do I need? should I go ahead and complete the AAA form for a private arbitration or wait until court date for the MTC to do anything

In the process of being sued by MCM I’ve already submitted the MTC had court and the judge continued the MTC to October then I received motion for summary judgment dated the same day we went to court i have until the 16th to respond

how should I handle this? what documents do I need? should I go ahead and complete the AAA form for a private arbitration or wait until court date for the MTC to do anything

1. Who is the named plaintiff in the suit? ----MCM

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) -----Smith Debnam

3. How much are you being sued for?------- Around 3,000

4. Who is the original creditor? (if not the Plaintiff) -----Citibank NA The Home Depot

5. How do you know you are being sued? (You were served, right?)----- served

6. How were you served? (Mail, In person, Notice on door)----in person

7. Was the service legal as required by your state?----- yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?------ None I never go a letter before I have never herd of MCM

9. What state and county do you live in? ------NC Cabarrus

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)------ not sure per MCM info. 2019

11. When did you open the account (looking to establish what card agreement may be applicable)? ------2018 I think so

12. What is the SOL on the debt? To find out: -----3 years

Statute of Limitations on Debts

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). ----responded to answer, then they sent Interrogatories, request for documents -----I responded to those with “objection- arbitration has been elected, and a jurisdictional motion is before the court. The scope o discovery is t be determined by the arbitration forum” I filed the MTC private arbitration per contract that was continued until next month, ---then rec’d MSJ court with a court date of next two weeks or so.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

-----I have, although the OC never showed up on report, MCM was removed off of one report but showing on the other two this happen last month

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract').-

----No did not before suit but after suit started MCM was removed with and investigation letter sent to credit reporting companies

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?-

------ I had 30 days I responded with answer already I did rec’d interrogatory

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

-----Affidavit-exhibit B (This is by a person that works for them) , statements, card agreement-exhibit A, Fact sheet, bill of sale assignment-exhibit A, affidavit of sale of account, certificate of conformity

18. How did you find out about this site? ----------Web search

LaneBlane · September 7, 2021

Just for clarification, is this on a Home Depot consumer card?

The arbitration provision for the Home Depot consumer card clearly states, "If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court..." Filing a MTC was essentially your way of choosing arbitration. If you file your dispute with AAA now, you would at least be able to advise the Court and the Judge in October that you've taken this step.

Just ask for help here on how to write the best dispute. Have you read Fisthardcheese's Arbitration Overview and Strategy? You can find this at https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

HueyPilot · September 7, 2021

There exists a little bit of a conundrum with this motion.

You definitely do not want to file action with any motion or response that initiates the law suit pending arbitration. With approval of your MTC the trial court will be the wrong venue for submittal of plaintiffs Motion for summary judgement.

nor

do you want to ignore this pending MSJ suspense date. (Might be 20 days be careful)

At present you have an October continuance pending review of your Motion to Compel Arbitration.

I would call the court clerk and determine if there is any action to date on your Motion to Compel Arbitration. If approved you can respond to the MSJ accordingly.

You need to notice both the plaintiffs counsel and the court with a response to his motion that this is pending Arbitration and will be the wrong venue. I have seen a template on this forum that will be helpful. Maybe others will chime in on how to respond. Please check your NC Rules of Procedure for motions pending arbitration.

Bulldoger · September 7, 2021

1 hour ago, HueyPilot said:

There exists a little bit of a conundrum with this motion.

You definitely do not want to file action with any motion or response that initiates the law suit pending arbitration. With approval of your MTC the trial court will be the wrong venue for submittal of plaintiffs Motion for summary judgement.

nor

do you want to ignore this pending MSJ suspense date. (Might be 20 days be careful)

At present you have an October continuance pending review of your Motion to Compel Arbitration.

I would call the court clerk and determine if there is any action to date on your Motion to Compel Arbitration. If approved you can respond to the MSJ accordingly.

You need to notice both the plaintiffs counsel and the court with a response to his motion that this is pending Arbitration and will be the wrong venue. I have seen a template on this forum that will be helpful. Maybe others will chime in on how to respond. Please check your NC Rules of Procedure for motions pending arbitration.

what about something like this:

Objection to Plaintiff's Motion for Summary Judgment.
Now comes Defendant, XXXXXX YYYYY , pro se, in Objection to Plaintiff's Motion for Summary Judgment.
This action arises from a credit card obtained by (Defendant) from the Original Creditor Citibank N. A. allegedly sold to, purchased by, and/or bought by Midland Credit Management (Plaintiff) per Plaintiff’s claim on or around March XX, 2021.
The governing Credit Card agreement contains comprehensive arbitration agreement allowing individual arbitration of any disputes arising out of or related to the account.

Defendant filed a Motion to Compel Arbitration on (date). A hearing on said motion was held on (date) wherein Plaintiff expressly agreed to arbitrate.

North Carolina public policy strongly favors the resolution of disputes
through arbitration (see Miller v. Two State Constr. Co., 455 S.E.2d
678, 680-81 (N.C. Ct. App. 1995)). The North Carolina Revised Uniform Arbitration Act (NCRUAA), governs domestic arbitration (N.C.G.S. §§ 1-569.1 to 1-569.31).
When deciding an application to stay or compel arbitration, North
Carolina courts do not rule on the merits of the claims underlying the
arbitration. Instead, the court plays a gatekeeping role that is limited
to determining substantive arbitrability issues, which include issues
of the arbitration agreement’s:
(N.C.G.S. § 1-569.6(b); see Emmanuel African Methodist Episcopal
Church v. Reynolds Const. Co., Inc., 718 S.E. 2d 201, 203 (N.C. Ct.
App. 2011); Jeffers v. D’Alessandro, 681 S.E.2d 405, 415 (N.C. Ct. App.
2009).)
In North Carolina, the court determines the validity of an arbitration
agreement itself, while the arbitrator determines the validity and
enforceability of the agreement containing an arbitration provision
(N.C.G.S. § 1-569.6(b) and (c)). In considering whether the parties’
arbitration agreement is valid, the court applies general principles of
North Carolina contract law (see T.M.C.S., 780 S.E.2d at 597; Brown v.
Centex Corp., 615 S.E.2d 86, 89 (N.C. Ct. App. 2005)).
Because of North Carolina’s strong public policy in favor of
arbitration, North Carolina courts must resolve any doubt
concerning the existence of a valid arbitration agreement in favor of
arbitration. Where there is no dispute over the existence or validity
of an arbitration agreement, the court must compel the parties to
arbitrate. (See Revels v. Miss N.C. Pageant Org., Inc., 627 S.E.2d 280,
283-84 (N.C. Ct. App. 2006).)
The court must compel the parties to arbitrate if either:
The other party does not oppose the motion to compel arbitration.
The court grants the motion to compel arbitration.
(N.C.G.S. § 1-569.7(a).)

Plaintiff's motion for summary judgement falls outside courts jurisdiction. The court plays a gatekeeping role that is limited to determining substantive arbitrability issues.

Since Plaintiff agreed to arbitrate during hearing on Defendants motion to compel arbitration their filing of Motion for Summary Judgement is improper as it applies to the merits of the case which is beyond the gatekeeping role of this court.
Defendant has filed application with AAA pursuant to the Credit Card Agreement on (date).

WHEREFORE, Defendant moves this Honorable Court to formally stay proceedings pending contractual arbitration with AAA and to dismiss Plaintiff’s Motion for Summary Judgement due to courts lacking of jurisdiction over the merits.

Is an affidavit required since OP is stating what happen during trial?

Clydesmom · September 7, 2021

44 minutes ago, Bulldoger said:

This action arises from a credit card obtained by (Defendant) from the Original Creditor Citibank N. A.

Have you lost your mind? They can use this admission as a basis to withdraw from arbitration as it being expensive and unnecessary as the Defendant admits this is their account and debt.

To the OP. I would NOT use this wording unless you want to be fast tracked to a judgment.

"This action arises from a credit card account as described in the compliant filed by [Plaintiff] on [date] as Citibank N.A. Pursuant to the terms of service governing the account as described in the complaint private contractual arbitration may be opted by either party at any time.

Defendant filed a Motion to Compel Arbitration on (date). A hearing on said motion was held on (date) wherein Plaintiff expressly agreed to arbitrate."

Bulldoger · September 8, 2021

1 hour ago, Clydesmom said:

Have you lost your mind? They can use this admission as a basis to withdraw from arbitration as it being expensive and unnecessary as the Defendant admits this is their account and debt.

To the OP. I would NOT use this wording unless you want to be fast tracked to a judgment.

"This action arises from a credit card account as described in the compliant filed by [Plaintiff] on [date] as Citibank N.A. Pursuant to the terms of service governing the account as described in the complaint private contractual arbitration may be opted by either party at any time.

Defendant filed a Motion to Compel Arbitration on (date). A hearing on said motion was held on (date) wherein Plaintiff expressly agreed to arbitrate."

Thanks for your reply actually OP wrote that part I edited part where OP admitted MCM owned the debt but since he was acknowledging that he had a contract with OC and not MCM I thought it was o.k. but you make a good argument and I like your wording better.

madaboutu45 · September 9, 2021

@LaneBlane this is a Home depot card and thank you all for reviewing this

madaboutu45 · September 9, 2021

On 9/7/2021 at 5:07 PM, HueyPilot said:

There exists a little bit of a conundrum with this motion.

You definitely do not want to file action with any motion or response that initiates the law suit pending arbitration. With approval of your MTC the trial court will be the wrong venue for submittal of plaintiffs Motion for summary judgement.

nor

do you want to ignore this pending MSJ suspense date. (Might be 20 days be careful)

At present you have an October continuance pending review of your Motion to Compel Arbitration.

I would call the court clerk and determine if there is any action to date on your Motion to Compel Arbitration. If approved you can respond to the MSJ accordingly.

You need to notice both the plaintiffs counsel and the court with a response to his motion that this is pending Arbitration and will be the wrong venue. I have seen a template on this forum that will be helpful. Maybe others will chime in on how to respond. Please check your NC Rules of Procedure for motions pending arbitration.

Ok thanks I do not want to ignore this i don't want a judgement. I read that i need to have response in at least two days before MSJ court date. So it is best if i respond to MSJ by stating that I have a pending MTC with Oct date. I called the court they stated that the court date is still set for Oct. I received a letter reminding me of court date and it stated this court date is to settle or arbitration

LaneBlane · September 9, 2021

1 hour ago, key22 said:

@LaneBlane this is a Home depot card and thank you all for reviewing this

Home Depot has a consumer and a commercial card. Just be sure you have the consumer card.

Bulldoger · September 9, 2021

I think section (f) applies here so you you should cite it in your motion also.

2019 North Carolina General Statutes
Chapter 1 - Civil Procedure
Article 45C - Revised Uniform Arbitration Act.
§ 1-569.7 - Motion to compel or stay arbitration.

Universal Citation: NC Gen Stat § 1-569.7 (2019)

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; and

(2) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.

(b) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.

(c) If the court finds that there is no enforceable agreement to arbitrate, it shall not, pursuant to subsection (a) or (b) of this section, order the parties to arbitrate.

(d) The court shall not refuse to order arbitration because the claim subject to arbitration lacks merit or because grounds for the claim have not been established.

(e) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in a court, a motion under this section shall be made in that court. Otherwise a motion under this section may be made in any court as provided in G.S. 1-569.27.

(f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

(g) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.

(1973, c. 676, s. 1; 2003-345, s. 2.)

HueyPilot · September 9, 2021

My suggestion would be to Memo the Judge and copy to the Plaintiff through his lawyer.

I've drafted up a technical Memo with some caselaw subject to editing and personal preference.

Defendants Name Case Number

To: Judges Name Court Name etc

Re: MSJ Motions Pending Arbitration ruling.

Memorandum

Memorandum regarding Plaintiffs Motion for Summary Judgment Pending Motion for Compelling Private Contractual arbitration as per Card Agreement.

For reasons stated herin, the Court should strike Plaintiffs Motion for Summary Judgment rendering it null and void and have no effect on defendants pending application to confirm private contractual arbitration per incorporated agreement attached to motion to compel arbitration and deny plaintiffs motion for summary judgment as moot. A genuine dispute as to material facts exist regarding a number of Issues unresolved. Defendant has not been allowed discovery.

NC Civil Procedure § 1-569.7 (f) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.

An application has been made to stay action in this Court. Action is pending continuance. Petition and Motion for Private Contractual Arbitration is in continuance for determination on <enter date> Answer to Plaintiffs summons and complaint has been filed no further action initiated. The petition for private contractual arbitration includes a copy of the card agreement incorporated in the submitted motion documents directing disputes be settled by private arbitration.

Answers and summary judgment motions are matters that relate to civil actions, not motions pertaining to arbitration proceedings. See Fed. R. Civ. P. 7(a) and 56. A party does not file Case 3:04-cv-02370-L Document 33 Filed 04/30/07 Page 4 of 14 PageID 228 therefore, has no applicability to a proceeding relating to arbitration.

Plaintiffs’ motion should not apply to a proceeding relating to arbitration for two reasons:

(1) a proceeding relating to arbitration cannot be brought as a complaint to commence a civil action under the FAA; and (2) Rule 81 restricts the applicability of the Federal Rules of Civil Procedure in arbitration matters. S&B Br. at 3-4 (citing 9 U.S.C. § 6; Fed. R. Civ. P. 81(a)(3)).1

Rule 41 pertains to voluntary dismissal of actions and provides as follows:

an action may be dismissed by the plaintiff without order of court (i) by filing a

notice of dismissal at any time before service by the adverse party of an answer or

of a motion for summary judgment, whichever first occurs, or (ii) by filing a

stipulation of dismissal signed by all parties who have appeared in the action.

FAA’s goal of promoting the expeditious resolution of disputes, the enforcement of private arbitration agreements, rather than speed, is the dominant goal of the FAA that must be given priority by courts. See Guidotti, 716 F.3d at 773 (citing Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 219-21 (1983)). Normally, therefore, issues at the gateway to arbitration, such as the existence of an arbitration agreement, must be addressed according to judicial rather than arbitral practice.

When it is apparent on the face of the complaint and the defendants motion documents incorporated therein that the parties agreed to arbitrate, the court should apply the FRCP 12(b)(6) standard for a motion to dismiss for failure to state a claim, without any opportunity for discovery.

Yours truly

/S/ Signature

Your name

MSJ Motions Pending Arbitration ruling..txt

MSJ Motion Pending Arbitration.doc

HueyPilot · September 9, 2021

I would send a detailed memorandum to the judge and copy the Plaintiffs attorney. Should communicate your intent without initiating action or proceedings.

Draft subject to edit and corrections: