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Showing content with the highest reputation on 03/16/2018 in all areas

  1. Just got word today- the judge issued an order already! No hearing! Here's the exact verbiage: "IT IS HEREBY ORDERED that this proceeding is stayed to allow Defendant opportunity to initiate arbitration. IT IS FURTHER ORDERED that if Defendant does not initiate arbitration within sixty (60) days from the date of entry of this Order, Plaintiff is entitled to file Notice with the Court and this case will be restored to this Court’s active docket " Looks like I'm off to fill out that AAA arbitration form I printed out.
    3 points
  2. The only thing I see is under “Law and Argument”. At the end you state “Harsco at 415”. Harsco should be italicized. Except for the spacing issues mentioned by @Brotherskeeper I think it looks fine .
    2 points
  3. Ok, so I went up and filed, however my favorite clerk was not in the office. I ended up getting someone else, and a person in training. I submitted my paper work and they both seemed baffled lol. She only time stamped the Motion, but she did take everything else. Lets hope it goes where it needs to. I think I will call my clerk Monday to follow up.
    1 point
  4. If your response does not include an argument specific to the above delegation provision, they can argue that the arbitration clause as a whole is unconscionable under state law. Can you explain to me in what this actually means? How can this be argued if they were ordered to arbitration and what the arbitrator rules are valid? It is a little bit complex. When there is a motion to compel arbitration, courts have concluded that, unless the parties have agreed otherwise, "procedural arbitrability" will be decided by the arbitrator and "substantive arbitrability" will be decided by the court. “Arbitrability” refers to whether or not arbitrators have the authority to rule on a dispute. Courts always decide whether an arbitration agreement exists. However, what else the court often usually decides may instead be delegated to the arbitrator through a delegation provision in the arbitration agreement. So, issues of substantive arbitrability, normally reserved for the court, may instead be delegated (by contract) to the arbitrator. Say, for example, in your case, the court made a preliminary determination that an arbitration agreement exists between the parties. Normally, the court could still deny the motion to compel if, upon further consideration of an argument from a party opposing the motion to compel, the court determined that the arbitration agreement was unconscionable. An argument about the "costliness of arbitration" is an argument that the arbitration agreement is unconscionable. A question of unconscionability is a question of substantive arbitrability, normally reserved for the courts For background about cost as an issue of unconscionability, see pages 16-19 of this pdf by a Texas attorney However, the Dell agreement at issue here delegates unconscionability challenges to the arbitrator. What this means is that S&A' argument about the costliness of arbitration cannot be decided by the court, it must be decided by the arbitrator. As referenced in a prior post, this case is an example of a case involving Midland and the Dell agreement where the delegation provision was enforced. An argument has to be made about the existence of the delegation provision if one is to expect the court to enforce it. The argument about the delegation provision is a secondary argument against S&A' "costliness of arbitration" argument. The primary argument is that Midland stands in the place of the draftsman of the agreement. But if an argument about the delegation provision isn't raised, it may be considered waived.
    1 point
  5. That's right. I did mention that issue about a third of the way down in this post. They introduce that quote in paragraph 3 with the language "any matter brought in Small Claims court". "Any" is clearly wrong. The definitions of "we" and "you" in the arbitration agreement are particularly important here, not only to interpret this language but also to demonstrate that the arbitration agreement is enforceable against Midland - which they deny elsewhere in the motion.
    1 point
  6. @pockets66 I'm not sure about your previous post, but here's something in the Motion to Reconsider that I noticed. I don't know if it's already been addressed, so here it is. It's in regard to paragraph 3 in the MTR. They quote from the cardmember agreement. 3. "We agree not to invoke our right to arbitrate any individual claim you bring in small claims court or an equivalent court so long as the Claim is pending only in that court." They claim that "Under the terms of the CMA, any matter brought in Small Claims court is not subject to arbitration." And also, "Per the Credit Card Agreement, once the Webbank elects to file the claim in small claims court - there is not right to arbitrate the matter." That is NOT what the quoted section of the agreement states. It states that they won't invoke their right to arbitrate if YOU bring a claim in small claims court. You didn't bring a claim in small claims court. They did. Also, it does NOT say that NO ONE can invoke the right to arbitrate a matter in small claims but only says THEY won't invoke their right.
    1 point
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