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  1. Today
  2. I think that is the way throughout the state. At least in my county, which has the added benefit of having the most pro-consumer judges in the state. I once had a case heard by THE most consumer friendly Circuit Court judge in the state. I was happy with that case.
  3. That could be a MSJ hearing. Did you receive anything from the plaintiff? What law firm filed the lawsuit?
  4. Yesterday
  5. Maybe there is. What I was thinking about was pre-emotive arbitration. You need to find some way to get this into arbitration before you are sued in small claims court. The easiest way is if there are violations. There are other ways. Usually the best time to start arbitration is right before they file suit I would suggest sending additional letters for both accounts saying you are electing arbitration for the claim and that the claim must be handled in arbitration. Add something to the effect that you are willing to work with them to get the matter into arbitration. See how they react to that.
  6. @Brotherskeeper This is quite interesting. It just shows how deviously Citi constructed the card agreement. I wonder just how many times they’ve argued “both sides” of their own agreement.
  7. Interesting....well no matter how our motions or trials play out in small claims, we will be able to appeal(therefore elevating it out of small claims) then do the same thing and immediately file another MTC with the higher court. It would just be nice if the MTC were granted in the first place...as filing an appeal is expensive unless you just through a bunch of hoops to show you cant afford the bonds
  8. @WonderingInWI You might find this interesting. In an Arizona case that a pro se brought against Citibank in small claims court, according to the pro se author of this article, Citi did the following to evade the small claims exemption: https://medium.com/@dempsey/tyranny-of-the-arbitrators-5b5526489338 "In its motion, Citibank simultaneously: cited A.R.S. 22–504 to unilaterally and automatically have my small claim removed to Justice Court; and, cited the arbitration agreement’s Disputes Excluded from Arbitration clause — “…so long as the disputes remain in [small claims] court…” — to force this newfound Justice Court case into mandatory arbitration. By unilaterally removing my small claim from small claims court, Citibank had exposed its agreement to contain a deceptive trap that does not grant a right to small claims court."
  9. Set to appear before Justice of the peace. Hearing, I'm guessing.
  10. The appeal from Small Claims to Circuit Court in my county is De Novo.
  11. If the appeal goes to circuit court, you can raise both the adopted-by-reference delegation, and the "so long as the matter remains in such court" arguments. Assuming that the buyer raises the cut-out at all. Depending on the rules in your jurisdiction, if the appeal is not de novo, any objection based on the cut-out might be waived if not raised in the lower court.
  12. Thanks, Pericles, My agreement is the one naming only AAA as arbiter. My tiny ray of hope is that, in WI, we start in Small Claims Court, overseen by a Court Commissioner. If the Commissioner rules against you, the appeal goes to Circuit Court where a judge presides. My previous experience was that the Commissioner denied my MTC and entered a judgement against me. The Circuit Court judge accepted the MTC.
  13. Hi Mlrs327, I am dealing with Citi’s arb “limitation” clause in WI. Unfortunately, my case is in a court specifically named Small Claims Court. I am very intrigued by your 3rd argument. I have been searching high and low for case law that specifically addresses this issue. The Schein Supreme Court decision is interesting but does not speak directly to our issue. I would be thrilled if anyone here has knowledge of case law that specifically addresses the validity of the arb limitation clause.
  14. What's the incorporation (adopted by reference) language like? For agreements that reference both the AAA and JAMS, it usually looks something like this; For agreements that reference just the AAA; The following is quoted from Rent-A-Center delegation of arbitrability to the arbitrator is alive and well ...; In Hughes v. Ancestry.com, 2019 WL 2260666 (May 28, 2019), Ancestry.com and the customer agreed to arbitrate disputes, except for certain claims not involved in the case. The parties’ arbitration agreement adopted by reference AAA’s Consumer Arbitration Rules, including Rule R-14(a), which provides that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” In order for some citi agreement to be inconsistent with the adopted-by-reference language, it would have to state the contrary of that language, something like; only a court decides "claims related to the validity, enforceability, coverage or scope of the arbitration clause". Probably most of the relevant cases are decided in "small claims" court and not challenged beyond that.
  15. @treblclef20 I'm sorry but I'm not familiar enough with NY laws and rules enough to give advice here. I don't know whether an arbitration agreement must be stated as an affirmative defense in an answer or amended answer or it is likely waived. @MIOMH believes it is not waived. If you have not asserted arbitration as an affirmative defense, and have not sent a notice of intent to arbitrate the claims, how is Plaintiff to know you don't intend to remain in court to litigate? How can they be compelled to arbitrate a dispute when you haven't given any notice of it in your answer, or made a demand to arbitrate, and have sent extensive discovery production requests? How have they refused to arbitrate at this point? Under NY CPLRs, can you ask that they be compelled without first making a demand? I don't know. Has the plaintiff made a request (RJI) and paid to have a judge assigned? Asking plaintiff to stipulate to allowing an amended answer would solve the problem. I assume that filing a motion to amend your answer must follow the CPLR rules on motion practice. @usctrojanalum is our NY expert, but is very busy these days. I'm not trying to discourage you from pursuing arbitration, I just lack an understanding of what you should do. If you don't even try to get this kicked out of court and into arb, you can't possibly succeed, can you? If I were in your shoes, I'd try and let the judge tell me no. (IANAL!)
  16. The OC is Citi. Calvary is the JDB. My agreement is 2016. There is no delegation language. Therefore, it seems, the small claims cut-out is potentially problematic. My previous experience with Midland was that the law firm they employed was rather clueless about the arbitration clause. I am not sure if Calvary is more savvy. Thank you for bringing the Schein case to my attention. I am doing a tedious search on PACER but can't seem to find a single ruling on the small claims cut-out. Are you aware of anything related to this?
  17. Hi syrina, In my case, I did file an Answer to the Complaint, including affirmative defenses but I understand now that it was not necessary. Your MTC is all that is necessary, as you are saying, in essence, that the case does not belong in that venue. You don't need to offer up any defense or affirmative defense. The forum members here know of what they speak. My understanding is that you use the agreement that was in force when you made your last payment. I am not positive about that, though, but I'm betting the posters here will know. I actually used the agreement in force when I opened the account. The arb clauses were unchanged from that agreement through the date I was sued, so it was moot.
  18. You say you "have court." Is it a hearing or trial or what? @fisthardcheese is there still time to initiate arbitration?
  19. @Brotherskeeper thanks so much. I have been reading the other NY threads but having a hard time sorting what is relevant to me here. I don't think I have enough time now to get a letter to the plaintiff about intent to arbitrate ahead of the court date and will probably need to file a motion to amend an answer. Since the court date is just in a few days, do I just bring the motion to court on that day? Or would I need to come in and file ahead of the court date (like on Monday)?
  20. That is super helpful WonderinginWi!! When you filed your mtc did you use an affirmative defense, or just the arb? I want to really make sure I get that part right. What cc agreements should I use? Would I use the ones from 2017-18, or the ones that are current?
  21. @BackFromTheDebt I read my rights from those acts & I don’t believe they’ve violated anything. From the sound of it, doesn’t seem like there’s much I can do. 😔
  22. @calawyer Does this also work for Original Creditors declaration of how records are kept etc. and the exhibit A of cardmember agreement and exhibit B of all credit card statements? Plaintiff's declaration was from a "litigation support coordinator for Discover Products Inc., successor by merger to DB Seervicing Corporation, the servicing affiliate of Discover Bank." I am in california and this was "excecuted in New Albany, Ohio. If called as a witness, I could cmpentenetly testify to the matter stated herein. NO ADDRESS or SERVICE ADDRESS was included in the declaration.
  23. @texasrocker yes, I filed an answer before the deadline. Is there anything I can do?
  24. Two weeks is not much time and definitely too late to send discovery. Did you file your answer before the deadline?
  25. Thank you...spell check doesn't work on CAPS. Copy and Paste is a blessing and a curse. I thought by adding it in the NOW COMES was sufficient. I put it back into the objection. I changed 1B to" Without waiving this objection, Defendant chose "I had no business dealings with Plaintiff (Lack of standing)." to the Summons and Complaint. It was submitted to the court and mailed to the Plaintiff." I thought by the NOW COMES paragraph and objecting everything with "I have demanded private contractual arbitration" would save from that. Yes, that is all true. There hasn't been a judge assigned to my case because someone has to pay for RJI, hence why I haven't motioned anything yet. CPLR 3025 (a) you can amend without leave of court within 20 days after service. My time had expired by the time you guys wrote about amending. (b) by stipulation of all parties. I wouldn't think the attorney would but I guess I should've tried. I filed today. At the time @fisthardcheese recommended I didn't have the filing fee if I had gone through filing online which they require. After rereading fisthardcheese arbitration strategy it mentioned that you can file via mail without payment, which I did.
  26. Thank you. I will look into Rosenthl in California. I believe it does apply, but I couldn't remember which laws to reference. I am weighing the possibility of motion to compel arbitration. When anything new happens in the case in california, you can compel at anytime. Filing a motion for limine, since they did not comply with the laws of the court, will exclude all of their supporting evidence. It could be a complete win and the whole case get dismissed with prejudice. Reality I would prefer to buy more time to save up and settle, but the attorney refuses to return any of my calls, letter emails etc. to meet and confer or discuss settlement. So, since she made a mistake in not following the court rules, I kind of want to just stick it to her. THIS FORUM and ALL OF THOSE THAT HELP EVERYONE OUT...INCREDIBLE ❤️
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