Author Topic: Strategy for defeating MSJ: Motion to Dismiss, Compel Arbitration or both?  (Read 3629 times)

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Wisdom

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Succeeded today as judge grants my Motion for 30 day Extension.  OC has filed MSJ asking for award.  I'm looking for advice on which strategy to apply:  MTD or MTC Arb.

OC contract calls for either NAF or AAA, my choice.  I prepared both Motions.  Should I file both, one or wait till next hearing and submit them to the judge?  (Can I do this or do I have to submit ahead of hearing date?)  Florida.


MOTION TO DISMISS

NOW COMES Defendant, xxx, Pro Se, who files this Motion to Dismiss, moves this court to dismiss the above titled action with prejudice due to defect of contract.

Plaintiff’s contract is defective:

1.  Plaintiff asserts Plaintiff and defendant entered into a credit card account via an alleged contract attached to Plaintiff’s complaint as Exhibit “A”.

2   Plaintiff asserts Defendant indicated acceptance of the terms of the alleged Agreement by keeping, signing or using the credit card or credit card account.

3.  Plaintiff asserts Defendant breached alleged agreement on or about 12/10/08.

4.  Plaintiff’s Agreement Exhibit “A” is dated 07/09. (Page 1).

5.  Plaintiff submitted statements of account for March 2007 through March 2009, showing  “ALL ACCOUNT ACTIVITY FOR the specific time period and ALL TRANSACTIONS”. (Emphasis added). See Composite Exhibit #1.

6.  The last alleged transaction date recorded in Plaintiff’s submitted Composite Exhibit #1 is August 23, 2008.  Therefore, the last date Defendant could have allegedly accepted the purported agreement was August, 2008.

7. Defendant argues it is impossible for Defendant to have agreed to the terms of a contract dated July, 2009 when the alleged account wasn’t “kept, signed or used” after August 2008.   Defendant further argues it is impossible to breach an agreement in December, 2008 that Plaintiff provided dated July, 2009.

8.  Plaintiff is asserting Defendant entered into an alleged agreement a minimum of 11 months before Plaintiff provided said agreement.

Because actions filed by Plaintiff to collect alleged unpaid credit card charges were based on a defective contract; because Defendant could not have agreed to terms of an agreement 11 months prior to Plaintiff providing said agreement; and because Plaintiff’s contract is defective there can be no Breach as alleged in Count I nor could there be Unjust Enrichment as alleged in Count II:

9.  The Defendant requests that all counts in Plaintiff’s Claim be dismissed with prejudice.

10.   The Defendant also requests the court order Plaintiff to withdraw any negative information about Defendant provided to any and all credit reporting bureaus within 20 days.




AND



DEFENDANT’S MOTION TO COMPEL ARBITRATION

   NOW COMES Defendant, xxx, Pro Se, who files this Motion to Compel Arbitration, and as grounds thereto states as follows:
1.   That on or about August 17, 2009, Plaintiff filed its Complaint against Defendant, and attached as Exhibit “A" a copy of the purported Cardholder Agreement.
2.   That Defendant has contacted the plaintiff to request the election of private arbitration numerous times.
3.   That pursuant to said “Agreement”:
      IF ARBITRATION IS CHOSEN BY ANY PARTY WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT...”  Emphasis added
                        (See Attached “Exhibit A” Page -3-)
4.   That Defendant is entitled, pursuant to said “Agreement,” to now have Plaintiff’s “claim” Arbitrated.
5.    That Defendant cannot be properly Ordered by this Court to File the Arbitration Claim of the Plaintiff as it would require an Affidavit verifying that the claim is accurate, and Defendant contests and disputes the Claim of Plaintiff.
6.    It is now incumbent upon Plaintiff, if it wishes to further pursue this matter, to Initiate the Arbitration Claim pursuant to the National Arbitration Forum’s (NAF’s) code of Procedures as stipulated in Plaintiff’s alleged agreement. Exhibit (“A”)

   
 
WHEREFORE, Defendant respectfully requests that this Honorable Court:
   a.   Enter an Order of Dismissal Without Prejudice of this matter.
   b.   Enter any other such Order as justice and fairness dictates.



Thoughts?

ReleaseTheHounds

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BUMP

Looks good to me Wisdom, However I would like to have the big guns give an opinion.
What good is money if it can't inspire terror in your fellow man?

metalstorm

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I don't think they will dismiss your case. You can try but it is doubtful that it will happen.

I would MTC Arbitration now i believe Florida is a state where you loose the right to arbitrate if you don't elect it right away.

I would also put the key areas of the contracts arbitration clause in the Motion and include a copy of the contract.

You might want to add this  in your Motion also:

According to the The Federal Arbitration Act  Title 9, US Code, Section 3  “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

That should get your case stayed pending arbitration and after  you actually get into arbitration with the Plaintiff you can then motion to dismiss with prejudice. The Judge may dismiss without prejudice but it is worth a try.

IMHO I would leave out any reference to NAF they are out of business and might cause a problem with your Motion.


-Metalstorm

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howucantoo

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I don't think they will dismiss your case. You can try but it is doubtful that it will happen.

I would MTC Arbitration now i believe Florida is a state where you loose the right to arbitrate if you don't elect it right away.

I would also put the key areas of the contracts arbitration clause in the Motion and include a copy of the contract.

You might want to add this  in your Motion also:

According to the The Federal Arbitration Act  Title 9, US Code, Section 3  “If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

That should get your case stayed pending arbitration and after  you actually get into arbitration with the Plaintiff you can then motion to dismiss with prejudice. The Judge may dismiss without prejudice but it is worth a try.

IMHO I would leave out any reference to NAF they are out of business and might cause a problem with your Motion. Good Catch ! do not refer to NAF if contract gives choice of another forum


-Metalstorm
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

maggie222

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Who's the OC, and what were the arb forum choices under the original contract?  Seems too convienient they supply a July 2009 contract with only NAF and AAA.  I'd bet this is Amex..? 

Wisdom

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Correct on both bets.

I plan to answer MSJ with a MTC Arbitration.

Other Ideas?

howucantoo

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AMEX 2009 has AAA & JAMS

I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

Wisdom

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What are the implications?


silverzgirl

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JAMS costs a lot more...for them...as in at least 3K to start the process. It is also a far more level playing field though I don't think anyone has made it all the way to arbitration yet (which is a hint to how fair it is...creditors are looking to settle quickly since their paying out won't necessarily result in a big payday.)

I have an OC there now, who is notorious for fighting like a junkyard dog. They paid the initial 800 and got the 2K retainer last week. Mind you, they also filed a suit with arbitration already on the table...so they have some major violations against them. Last week their legal person called...don't know why as they were not in when I called back. However, they are most likely testing to see how much of a game fish I am (as in how much will it cost them to fight, or is it better to just flee and pursue low hanging fruit.)

If anything, go JAMS.
“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.

Wisdom

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Good advice.

I undersand NAF and AAA are not taking on new cases, so is JAMS the only alternative the court court order us to take?

 

silverzgirl

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Re: Strategy for defeating MSJ: Motion to Dismiss, Compel Arbitration or both?
« Reply #10 on: November 02, 2010 10:03:34 PM »
AAA takes consumer initiated cases, but it seems to be spotty...at least one person found themselves in front of a pro-creditor arbitrator.

However, judgment in arbitration is NOT public record as it is in court. And they still have to get confirmed in court to collect on it.
“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.

Wisdom

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Re: Strategy for defeating MSJ: Motion to Dismiss, Compel Arbitration or both?
« Reply #11 on: November 22, 2010 08:22:53 PM »
Update today:

Judge started to hear my response to their MSJ.  I reminded judge there was a motion to compel arbitration.  The plaintiff's counsel didnt even know that was in the file.

She granted my motion to compel arbitration and Stayed proceedings, but ordered me to initiate arbitration, not agreeing that I could not do so as I wasnt the claimant.


bad98roadster

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Re: Strategy for defeating MSJ: Motion to Dismiss, Compel Arbitration or both?
« Reply #12 on: November 22, 2010 09:12:19 PM »
Update today:
Judge started to hear my response to their MSJ.  I reminded judge there was a motion to compel arbitration.  The plaintiff's counsel didnt even know that was in the file.
She granted my motion to compel arbitration and Stayed proceedings, but ordered me to initiate arbitration, not agreeing that I could not do so as I wasnt the claimant.
Congratulations!

Wisdom

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Re: Strategy for defeating MSJ: Motion to Dismiss, Compel Arbitration or both?
« Reply #13 on: November 22, 2010 10:58:50 PM »
Another battle won, now going to the Arb battle.  Long war.... protracted.  Hopeful the strategy is a winning one.


bad98roadster

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Re: Strategy for defeating MSJ: Motion to Dismiss, Compel Arbitration or both?
« Reply #14 on: November 22, 2010 11:14:54 PM »
It already is a winning strategy. No summary judgment.