0:09
OK, in this video, I'm gonna review a case I found on the internet. here. I'm gonna switch screens here, like, I can walk you through this and there's a lawsuit with a bank. You know, it's, the bank is Citizens bank.
0:19
OK, in there, so in this gentlemen, for whatever, I think it's, it doesn't matter, right, It's $26,000, like that, $27,000.
0:28
OK, So notice how Citizens Bank.
0:32
It comes in here with the complaint, Here's the case number.
0:34
It was filed recently, October 15th, 2021, It's in Pennsylvania and see how it alleges everything in here?
0:43
And then it's got the first count for breach of contract, OK, So in a in a debt collection lawsuit like this, sometimes there's a statement or there's a cause of action or a Complaint for Breach of contract, which there really should be some attorneys over. The years have gotten around this. They've changed the pleading requirements.
0:59
So they can instead of saying breach of contract, which requires the production of the contract, OK evidence of the contract they all say a stated account or open account which does not require production of the contract or proof of the terms of the contract.
1:17
So they here put breach of contract.
1:20
OK, well that means I'm looking for a contract and count two.
1:26
They used unjust Enrichment Meaning it's not fair that this person gets to keep this money not paid back when we took the risk, which is a joke because the banks never take a risk anyways.
1:37
So, when I look through this, OK, so, my first question is, Without even really reading too much detail as, I look to see where it's alleged, that there's an agreement, OK?
1:46
So, in fact, they did in line five it plaintiff alleges, there's a Card member agreement, and that's exhibit A Well, I'm gonna skip right over there and check it out.
1:56
Now, that was only two counts, right. It's only to count complaints.
1:59
So anyways, I go down and I'm seeing here like, um, what is this, some sort of documentation that the plaintiff may have and its own records, I guess. Maybe it's a court record, I don't know. I don't really care.
2:13
This is A I pay appears to be a statement of the account.
2:22
It's, it's not really something that we can use. It's gonna it's not something that the plaintiff can rely upon to establish a debt, but they'll try to do that to show like circumstances giving rise to the debt. then you've got some redacted things here, and then we get into here's the promissory note. Now, this is the card member agreement, It's the promissory note.
2:44
So if we go through here, you get the loan terms.
2:48
All right, you've got the terms and definitions promised to pay.
2:52
That is the components of a note, right?
2:55
So what I'm looking for is a connection that exhibit a May have to the plaintiff, I'm sorry, to the well, to the plaintiff. Yeah, so Citizens Bank is the lender here. Apparently, it says it right here. There's no assignee or anything like that. But I'm also looking to see where the defendant is tied into this, these terms.
3:14
So maybe I need to see a signature or some date on there to make a connection, right.
3:21
So anyways, I'm just scrolling through. Look at the different terms.
3:28
See here, when does interest accrue?
3:30
These are important things in a loan agreement, what about repayment, what constitutes default? Right?
3:36
Now, repay the loan, early, optional services.
3:41
What's a default that's important you have to have that.
3:45
So, it's getting, I'm seeing it's more going to be more difficult to make a response here. I mean, I might have to answer the complaint.
3:52
I might have to, If I'm doing this, I might have to, I'm trying to look for a way where I can I can admit everything in the complaint, and I can just say, The court doesn't have jurisdiction and I could do that.
4:02
If this exhibit a contract doesn't show a nexus between the plaintiff and the defendant.
4:09
So far, it's looking pretty good.
4:10
I mean, the plaintiff has all the terms needed, it's identified itself and this document.
4:17
Then we get into the bottom here. So what my first glance at this was to just scroll through, and I see there are other terms of this note, OK? We got this arbitration agreement.
4:30
We'll get to that in just a second.
4:31
Alright, so we will scroll through here.
4:36
All right. They try to cover this so they can use it in all the States. So, they have certain restrictions and some states they have to address.
4:45
Scroll through here and now I'm going to see, here's the signature page. Now, Signature Page.
4:55
It's not really part of this agreement, but let's just say it is. I mean, I'm not going to make that argument. I don't have to, you'll see.
5:02
So let's just say, here's this signature page, and they're going to say, We have it on file.
5:08
All right.
5:11
I can challenge that.
5:13
But I can also challenge the fact that this is not part of the agreement. It doesn't appear to be.
5:19
So at the very least, I can come back here and say, All right. I'm going to ask the Court for dismissal. But if I do that, I'm going to have to admit everything that that was alleged in the complaint.
5:30
And then I'm going to argue that this agreement that they're saying is exhibit A taken at face value. Let's just say it's, you have to admit that that's the agreement.
5:41
But I'm also going to say that it's not authenticated, or it's not self authenticating. In other words, this agreement needs a witness to make it valid to make it evidentiary to be used against the defendant.
5:54
I could say that.
5:57
I don't think that'd be a strong argument though.
5:59
So, that's the end of that, right? I guess that was exhibit A I don't think there's Maybe that's exhibit B I don't know. But let's just say exhibit, OK, so, that is the card member agreement. So, let's just look back up here.
6:11
Here's the, here's what I wanted to make a point of.
6:13
So, let me go back up to the pleating, this is called the Pleating, we look at this first, they're talking, they're saying why the court has jurisdiction up here, OK?
6:22
You have to be resident in an area, and story of the case.
6:31
And basically, it's saying we sent him, we sent them statements, they didn't pay, he didn't pay, therefore, there's a default.
6:39
here's the amount owed.
6:41
Then also, it's not fair because he gets all that money, doesn't have to pay it back.
6:45
Know, it's funny is it's never going to be unjust. First of all the bank didn't lend anything.
6:50
Second of all, if the defendant never pays the bank back, then the defendant or the plaintiff, is going to write it off as a loss and recover that money for the ... from the tax system. So, it's going to spread that loss, OK, if we, if it is a loss. It's not a loss, but let's just say it's a loss and that is going to be spread amongst the community of people that Fall 10 forty's.
7:13
That's who absorbs all this stuff.
7:15
So there can't possibly be unjust Enrichment in reality, but they're going to act as if they're just lost and they can't recover it.
7:27
All right, So that's my commentary on that. You can read it. You can read this for yourself.
7:32
It's common stuff. All right, what I really wanted to point out is that.
7:37
If we ask for dismissal, and I think in Pennsylvania, it has to be a demurrer I really don't care.
7:43
But the point is, we if we ask for dismissal, we have to admit everything that's pleated properly in this complaint And I don't see a problem of this complaint. I have to say. I think they've got everything covered.
7:56
Let's take it at face value. And let's ask for dismissal. But let's tell the court this, let's just make a special limited appearance. That means you're not accepting, you know, it's not a general appearance and you're not saying, I accept the Court's jurisdiction.
8:08
You're just saying, I'm making an appearance for the purpose of responding to the complaint, OK, until my motion is denied, the court tentatively has jurisdiction just enough to hear my response, right?
8:21
And then we come down here This is my I call it a demure verification, a verified motion to dismiss I'm you know, we can we can use both here, Right?
8:30
So this is my effort to respond to this this document just to give you guys an example of how you could do this Alright tonight is, you know, identify who I am I'm appearing by special amid appearance And in response to the complaint, I'm basically saying the complaint doesn't state a cause of action.
8:48
Here's why.
8:50
Assuming all allegations to be true, and therefore that exhibit A is the card member agreement as alleged.
8:56
Let's take it at face value according to Section 15 or Paragraph 15, of both the plaintiff and the defendant are subject to compulsory binding arbitration as a means of resolving any disputes or material breaches of the alleged agreement.
9:13
Let's go back down to 15 here, and let's go look at exhibit A.
9:18
OK?
9:25
We're going to go over an exhibit A.
9:29
Uh, huh.
9:30
Scrolling down scurrying down. All right. Here we go. So there's the note we're talking about.
9:36
Let's go to section 15.
9:42
So 15 has to do with an arbitration agreement, OK? We have to we're accepting that this is what they say it is.
9:51
So it says, basically, that.
9:55
If you don't opt out of this, you have no choice, but to go to arbitration, you waive your right to have a court or a jury, decide the case.
10:09
OK?
10:14
If you do not opt out, you do not have you not have the right to go to court.
10:21
You have the right to cancel or opt out, right? So they give you that.
10:25
And here's the dirt. Here's the deal.
10:27
If you have a dispute and you're not able to resolve it, you agree that you have to go through arbitration and you have to go through they say here, you're waiving your right to trial, as well, but you have to go through the American Arbitration Association or jam's, I forget what GM stands for, but it's an arbitration service.
10:48
And these are governed by the Federal Arbitration Act, OK, Title nine of the US.
10:53
Code Federal Arbitration Act.
10:58
This is compulsory binding arbitration, that means that you cannot ignore it.
11:02
You cannot go to court while this is in the contract.
11:06
If you use this contract as evidence of the obligation, and you file a case in court, the Court is divested of having any jurisdiction, because the contract itself precludes the court from having jurisdiction. If the court has to rule over it, the court has to say, Well, we don't have jurisdiction.
11:24
You guys have to go to arbitration.
11:29
OK, you can see this for yourself.
11:33
Et cetera, et cetera, It goes on and on.
11:36
Right, to cancel opt out, if you don't opt out, you're stuck with it.
11:40
So we asked the court for dismissal, and we're saying this.
11:48
That The plaintiff failed to commence any arbitration process as required by Section 15 of the card member agreement.
11:54
The complaint is not a petition for confirmation of any arbitration award.
11:57
So once the arbitration is completed, the prevailing party can go to the court and ask for an arbitration award. Usually the creditor does that, right. So, they get the court's approval of it, but the Court doesn't get to decide on the case.
12:09
They only get to approve it so, that way, the plaintiff has access to the police, OK, the executive function to collect on the money to levy on assets, OK. That's the only reason it goes to court for confirmation, not to decide the case.
12:22
So, the complaint is not a confirmation of an arbitration award and No Ward, husbands sought, according to the Card Member Agreement.
12:31
Nor has it been sought according to the pleading. It hasn't been alleged. It wasn't in the pleading that. They were seeking confirmation of the word, you guys, But you can go look back and look at it for yourself.
12:41
So the court has no jurisdiction over an agreement over this agreement or any agreement that is subject to binding arbitration.
12:50
The plaintiff has failed to allege that the defendant has opted out.
12:55
The plaintiff has failed to allege a cause of action that is exempt from the binding arbitration provision.
13:01
And I would say that just because I don't want to give the plaintiff any more information that I absolutely need to prevail here to get dismissed. But the reality is, is that you can get around an arbitration clause if there's an issue of fraud.
13:13
You can sue for fraud, it irrespective of whether or not you have an arbitration clause and a contract that gave rise to the fraud.
13:19
There is no fraud here. Of course, there would never be a cause of action, but I just didn't want to say it. So, anyways. That would be the exception.
13:25
It says, therefore, the plaintiff has waived its right to proceed in this Court, or in arbitration, and cannot proceed, either in this court or any other court or within any arbitration form.
13:36
But the fact that it has commenced the above caption matter in violation of its own binding arbitration agreement and, therefore, has waived any rights it had to arbitrate with the Defendant.
13:50
So the fact that there was a binding arbitration clause in the contract on which the plaintiff was relying to get a remedy to sue for money.
13:58
The plaintiff failed to follow that process of commencing an arbitration proceeding, before the American Arbitration Association or jams then constitutes a waiver of its right to seek a remedy at all.
14:14
It waived his right to go to court because it didn't have one in the beginning, and waved its right to Arbitration, they can't go back now.
14:23
And I decided, You know, there's just a rule here about motions to dismiss Now, there is case law on this, and I had some, from Florida, I can't find it. But, anyways, you guys can do your own research.
14:33
You can shepherdess things, but, basically, when there's a binding arbitration clause, if it's not complied with, then the parties waive their rights to a remedy, They've restricted the rights to a particular type of remedy or process, and when they go around that, they actually waive their rights to that.
14:51
So, this is a formality I just put in here. But basically, this is what, this is what we can expect. So what's going to happen is, the Court is ultimately going to going to dismiss the case with prejudice. He can never bring it back.
15:04
Citizens is out that money, and the attorney made a huge mistake, made a huge mistake. He probably didn't even read it.
15:13
Maybe he didn't know the case for, I don't know.
15:15
Now, let's say the judge, let's say the judge, lets the case proceed. You can ask for summary judgement, you can go into discovery. I mean, there's really nothing to do else to do, really.
15:26
You can, you can go into discovery and establish the contract, if you want, but it doesn't really matter, because if the court never had jurisdiction from the beginning, and can never acquire jurisdiction, nothing. It can't be cured in this case. So, you can let them do whatever you want, you can, they can default on it, or whatever. And you can move and have it set aside If the other side prevails in this situation under this set of facts.
15:46
You can appeal it and yeah, it's, it's a bother to have to appeal it.
15:51
But if you appeal it, it'll get reversed on appeal and you'll win.
15:54
There is no way it's jurisdictional, OK, Just want to share that with y'all. Sometimes you just gotta be careful about looking through some of these things. Sometimes the attorneys make big mistakes, and you can capitalize on them once you, once you know a couple of things. Hope this helps, and hope you're not in that situation, but if you are, helped us out.