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.
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.