snax

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About snax

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  1. I was not able to make oral arguments at the hearing because I failed to follow the proper protocol. However the Judge has allowed me to file a response to the Plaintiff's Opposition. I'm going to start working on that now. My response needs to establish conclusively that an agreement that includes Arbitration exists. I think this means that I need to prove that the 2008 agreement including the survival clause is the correct agreement. It seems like it would be easy since it is the agreement that was actually signed to open the account. It also seems like it is bad for Cap One's case that they are claiming that I never agreed to a 2008 Cardholder Agreement for an account opened 2/1/2008. Isn't that similar to saying they never had an agreement with me at all?
  2. Off to a rocky start. I was not aware of "Tentative Rulings". Apparently the day before the hearing the Judge makes a ruling and those rulings are posted on a website a 3:00PM. If don't like the ruling and want to make oral arguments at the hearing I needed to go to the court and schedule oral arguments before 4:00PM. The Judge's Tentative Ruling was: "The motion is DENIED. Defendant fails to show the existence of a written agreement to arbitrate. (See Cal. Code Civ. Proc., ยง 1281.2)" It was disheartening since it seems to indicate that the Judge didn't look at my motion which had the Agreement with Arb attached along with an Affidavit. I'm not sure how I can better show the existence of a written agreement than filing it with the court. At first the Judge said there was nothing more I could do. However when I said that the opposition to my motion had only been served on me the day before and that I have had not chance to respond to the inaccuracies in their opposition the Judge said that I could have 14 days to file a response. She did not indicate if it would have any bearing on the ruling though... Time for me to get to work!
  3. Thank you Linda7! That describes my case perfectly. One question: How and when would it be appropriate to bring it up if I feel that the court is not enforcing it? I want to be respectful to the Judge, could bringing this up be interpreted as telling the Judge how to do his/her job?
  4. Same boat. I filed a MTC as per your post on arbitration and they opposed. Details Here. Their argument is weak, if I had even a couple days I would file a response. As it is I'm going to have to try and argue in person against their Lawyer I'll post back to let you know how it goes. Wish me luck!
  5. Their Motion is titled: Opposition to Defendant's Motion to Compel Arbitration. It also has a Declaration in support by their own Lawyer. They are arguing to deny the motion because: Defendant has not Sufficiently Established his Right to Arbitration Their argument basically states that the 2010 agreement that they include is the correct agreement to govern the dispute. No Arb provision in 2010. They argue that my 2008 agreement is invalid because: "Defendant merely found a random Capital One customer agreement which displays an arbitration provision and attached it to his motion." However this is patently false. I specifically chose the 2008 agreement because it was the agreement I agreed to when the account was opened on 02/01/2008. It is the only agreement I ever had the opportunity to review and it is the agreement that was signed. I did include ATT vs Concepcion and FAA in my MTC. (Thanks to your posts on Arbitration!) Unfortunately I was served the opposition only 36 hours before the hearing and I don't think I will have time to file anything else. I will need to make my case in person vs their lawyer at the hearing. Hopefully I don't get "Railroaded". Thank you so much for all of your help!
  6. I agree that the survivability clause should stand on it's own. Cap One's own contract is clearly on my side in this. The only document that they have included is a 2010 Cardholder Agreement. I noticed that they did not affidavit their Agreement. Hopefully the Judge takes the time to read everything over. Its going to be me vs. a lawyer at the hearing. I suppose I shouldn't be nervous about that since if the judge is pro-plaintiff there is probably nothing I can do anyway. Fingers Crossed.
  7. Yes I did file an affidavit along with the MTC. My agreement does not mention that I need to agree in writing to any changes. Besides saying that the Arb Provision survives any changes to the agreement it also states that: "In the event of a conflict or inconstancy between this Arbitration Provision and the other provisions of this Agreement or any prior agreement, this Arbitration Provision shall govern." That may not be relevant here though since they are bringing out a newer rather than prior Agreement. I agree with what you are saying, my biggest concern is that I will be dismissed out of hand by the court because I am Pro Se despite the fact that the Agreement clearly states that it survives changes. Is there anything I can file with the court ahead of time stating my case? Thank you
  8. The exact same thing happened to me. I also opened my account in 2008. The Arbitration Provision in the 2008 Cap One agreement has a survival Clause that states: "This Arbitration Provision shall survive: (1) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us; ..." However Cap One is claiming that the 2010 agreement is the only agreement that applies and filing documents with the court to that effect. How dose one make sure that the Arbitration provision including the Survival Clause is enforced? Thank you.
  9. Capital One is Opposing my Motion to Compel Arbitration 2 days before the hearing for the motion. They are claiming that the Agreement has changed and that I am now bound by the 2010 agreement which has no Arb Clause. I know it is BS because the agreement I signed has a survival clause for the Arb Provision. How do I fight it? Background: I was sued by Cap One for less than $10k in the state CA The account in question was opened 2/1/2008 The 2008 Cap One agreement has an Arbitration Provision that includes JAMS. The Arbitration Provision has a survival Clause that states: "This Arbitration Provision shall survive: (1) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us; ..." Here is what has happened so far: As per the terms of the agreement I elected Arbitration with JAMS. JAMS accepted and served Cap One's Council. I filed my answer including the affirmative defense that I have elected Arbitration. I also filed a Motion to Compel Arbitration as per this extremely helpful thread by Linda7. (@Linda7 Thank you Linda7!) The Plaintiff has now filled an "Opposition to Defendant's Motion to Compel Arbitration" along with a Declaration in support by their own council. They supplied a 2010 agreement sans Arb Provision and are claiming it is the agreement that should be used. I should be able to fight this as it is in violation of their own agreement. But with only 1 day to respond I am defiantly feeling the pressure. Is this something I should address in person at the hearing for the motion or do I need to file a response? Please Help!
  10. What does your CC agreement say. Some Arbitration Provisions have a survival clause. Mine says "This Arbitration Provisions shall survive: suspension, termination, revocation, closure, or changes of this Agreement." The BoC would be "Termination" of the agreement. is that right?
  11. I don't think they have committed any violations. Before I was served they never once contacted me. I had been communicating with the OC but the last I heard from them was a letter notifying me of the Charge Off. That was 3 months ago. Then nothing, no collection attempts, no settlement attempts, no letters, nothing until I got served. So unless they were required to contact me I don't think they could have violated any rules. Interestingly in their their "Second Cause of Action (Account Stated)" They claim that: "Within the past three years, in <County>, California, an account was stated in writing by and between Plaintiff and Defendants and it was agreed that a balance of $9,XXX.XX was due to Plaintiff from the Defendants." They certainly didn't send me anything in writing and I never agreed that a balance was due. The alleged amount is approximately $9.6k. It seems to have grown with interest and fees. When I last was able to access my account it was $8.4k.
  12. Interesting. So I file a claim against them and then they file a counter claim against me for their original claim? It seems like the original claim that they filed in court would need to be arbitrated somewhere down the line. I will claim monetary relief for the fees I had to pay to file my answer and also I'm assuming to file my MTC Arb. Thank you
  13. Thanks for that, I will be sure to file them as close together as I can. I've run into an issue filling out the JAMS Arbitration Demand. I need to fill out the section "Claim & Relief Sought By Claimant". However, since I am the defendant, what claims I could I possibly be bringing? Thank you
  14. Thank you for that. I signed up for scribd and downloaded the 2008 agreement. However the scan is of low quality and difficult to read. It sounded like Linda7 has access to a cleaner scan? If so does anyone have a copy? Thanks
  15. Thank you cjb3, This is extremely helpful! I will contact JAMS about the fee waiver. If they want my Gross Adjusted Income (GAI) then I qualify. However my "Total Income" is just slightly over the cutoff. Hopefully it is the former that they want. One last question I had about the arb procedures: Besides sending all the paper work to the OC and their council as well as JAMS don't I also need to send something into the court? In fact don't I need to "Motion to Compel Arbitration"? As for timing I would need to do this before, or even instead of, sending my Answer to the court. Is that correct? Thank you so much!