Jump to content

Leaderboard

Popular Content

Showing content with the highest reputation on 08/12/2016 in all areas

  1. CCRP626, Its been a crash course in filing a motion etc, but with your help, its sinking in! After reading multiple threads fromothers filing in NJ, and considering how much to courts favor creditors in this state, I have decided to file JAMS and attach the demand filing to the motion to compel arbitration. Tomorrow, after mailing my election for arb to Portfolio CRR, I head to the courthouse for review of all work I have completed and if all passes muster, I file. I'll keep you posted and for the forum, will post any form I have completed after lawyer review. Thanks again!
    1 point
  2. @LunarMom read that steps of arbitration thread Cliff linked above. It looks long but the main stuff is on the first few pages. That should get you up to speed.
    1 point
  3. @Cliff2009 glad you caught 2005, I missed that. It looks like after @LunarMomelects arb and does the MTC, in Texas the burden is on Portfolio to initiate which with JAMS means Portfolio is stuck with the $250 as well. According to the court of appeals, it would be "illogical ... [to] place[ ] the onus of proceeding to arbitration on the very party who may be seeking to avoid it." 953 S.W.2d at 540. But placing the burden on the party against whom relief is sought would lead to an even stranger reversal of the litigants' proper roles. "It is antithetical to the interests of such a party to itself initiate a proceeding, be it a court suit or arbitration, that would expose it to the risk of liability." Gold Coast Mall, Inc. v. Larmar Corp., 298 Md. 96, 468 A.2d 91, 100 (1983). "If no arbitration clause existed, [the plaintiff] would have had the task and expense of initiating suit; she could not have required the [defendant] to sue itself. The rule is the same with arbitration substituted for suit: the party seeking relief is the one who must go forward with arbitration proceedings." Johnson v. Fireman's Fund Ins. Co., 272 N.W.2d 870, 882 (Iowa 1978) (Uhlenhopp, 706*706 J., dissenting). We therefore hold that absent a contrary agreement, a party against whom a claim is asserted does not waive its right to arbitrate by failing to initiate arbitration of that claim. In re Bruce Terminix Co., 988 S.W.2d 702 (Texas Supreme Court 1998).
    1 point
  4. 1 point
  5. If it were me I would do as follows (I did this with Cap One and they still owned it. ) 1. Send a letter to the attorney that per the agreement I posted (print it out) you ELECT private contractual arbitration. You can find sample letters here, check some of my posts. 2. Before the 14 days, file a Motion To Compel (MTC) private contractual arbitration with the court, also copy the lawyer. 3. Now this you will want feedback from those who know Texas law, you may want to file an answer (simple general denial) also.
    1 point
  6. The OP said 2005. The last page #18 Survival seems clear to me. Cap+2008+Agreement.pdf
    1 point
  7. fisthardcheese also advised: They aren't saying you never answered, they are saying you never provided proof of your listed defenses in your answer. However, that doesn't matter because the court removed itself from jurisdiction and this would be an issue that the arbitrator should be deciding on. There is a STAY in place and a court ORDER to arbitrate. These facts are all that matters. Again, all you need to do is point this out to the court. You lay it out just as they did in their motion. Such as "on X date, Plaintiff filed its complaint, on X date Defendant filed an answer, on X date Defendant filed a motion to compel arbitration, on X date, this court ordered parties to arbitrate and stayed this case. On XX date, defendant filed arbitration. On X date, Midland failed to follow the rules of the arbitration firm and the case was closed due to their failure to arbitrate or respond to the AAA. On X date, Plaintiff filed its motion for summary judgement in violation of this court's previous order to arbitrate and in violation of the stay on this case. WHEREFORE, defendant asks for sanctions on the Plaintiff in the way of a dismissal with prejudice and to award defendant his costs and any other sanctions as the court deems just and proper.
    1 point
  8. @CCRP626 Excellent advice, as usual. @Paralyzed The only way to get your case dismissed is with arbitration. We have had NJ attys tell us it is almost impossible for a defendant in a collection case to win in NJ Special Civil through litigation. The judges are very pro-creditor. And even with arbitration, you can probably expect a lot of push-back from PRA and even from the court because they aren't used to seeing defendants try to arbitrate their cases. So hang tough. Arbitration does work, but you have to see it through.
    1 point
  9. Update: I received a notice from Magistrate Court that my hearing was on August 8 at 0900. Previously, I had sent a letter to the JDB's attorney notifying them of my election of binding individual arbitration, which I had filed with JAMS. In my answer to the complaint, I had filed a Motion to Compel Arbitration and provided 3 Exhibits: A) My letter to the attorney notifying them of my election of arbitration through JAMS (B) A copy of the credit card agreement that contained the arbitration clause, and (C) A copy of my JAMS filing. In my answer paperwork, I included an unsigned order to grant my motion to compel for the Judge to sign if he ruled in my favor. All of this paperwork was filed with my answer. On the morning of the court date (Monday), I arrive about 30 minutes early and position myself at the front of the courtroom. I had copies of everything in hand, just in case I needed anything. As I am waiting, I see a woman arrive in the courtroom identifying herself to the court reporter as being from the attorney representing the JDB. I heard her say something to the effect of "he is asking for arbitration, etc." At this point, she leaves the courtroom and returns a few minutes later asking for me by name. I acknowledge her and she takes a seat next to me. She then states that "they are willing to settle for half, yada yada yada." I responded that the only acceptable outcome for me was for me to pay nothing, and for the case to be dismissed with prejudice - otherwise, we would take it before the judge. Of course, she didn't agree to my terms. At about 0910, court is called to order. The judge brings up my case first and states that he had read everything I had filed, and saw no reason not to grant my motion to compel. He asked the attorney representing the JDB if she had any objections, which she stated that she did not. The judge said he would sign the order to stay proceedings pending private contractual arbitration, and I received the signed judge's order in the mail today. I don't anticipate that Midland will be willing to pay the required $1,200 for them to proceed with JAMS for a disputed amount of about $2,000. I feel rather confident that they will dismiss at some point. Thanks again to everyone who provided advice and guidance through this process. I found all of the information to be on point, and very useful. It was a great feeling walking out of that courtroom on Monday!
    1 point
  10. Homelessincalifornia has some great samples of objections and trial briefs, only a bit outdated. you will have to incorporate Target v rocha, rodgers v cash, and Sierra v Hale.
    1 point
×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.