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Everything posted by CCRP626

  1. @scarab you have initiated, see NRS 38.223, not the Plaintiff's definition. NRS 38.221 (5) through (7) handles an action already in court. Texas also has similar laws for going forward with arb where the Judges basically stated a defendant in the case is not going to sue themselves. The Plaintiff brought the action. The agreement requires arbitration if one party wants it even if the other has started a court case. If the Plaintiff wants to continue their claim they file their paperwork with JAMS/AAA. Your job is not to state their case, only to invoke your right of where it's held. Once the Judge rules in favor of arb, the case is stayed. If the Plaintiff wants to move forward with their claim, they have the option in arbitration. That argument they tried where they say the Lake Tahoe or whatever it is case is different because arb was the only choice. Well, according to Nevada and the FAA, once arbitration is decided even if there was an option for court, arbitration becomes the sole place. As far as the argument that Delaware law applies, you'd have to look up choice of law case results to see if Nevada courts agree. When it goes into arbitration, it will go by the choice of law stated in the agreement but before then would be up to the Judge. You're not required to send the demand form to JAMS until after you get the court order to arbitrate. You can see that right on the demand form. If you want to send the demand form at this time you could asking JAMS to open a case but tell them you're waiting for a court order to arbitrate. Fees are non-refundable, so you don't want to send those. Basically all that opposition comes down to a $250 argument. That's the most you'll have to pay with JAMS to initiate.
  2. If the Plaintiff brings up a BofA cardmember agreement that does not contain arbitration favorable to you. If what they bring works for you and gets this into arb, no reason to unless you want to stay in court.
  3. Take this with you to the hearing to give you talking points. http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/?do=findComment&comment=1168454
  4. Yes. Name both FDCPA in case an outside party is doing this and Florida's FCCPA also covers original creditors abusive practices. If calling your cellphone, add TCPA as well, recorded messages to your home phone count. I believe there is recent caselaw if you have VoIP as your home phone for how that counts. http://www.nolo.com/legal-encyclopedia/florida-consumer-collection-practices-act.html On your demand form submitted to JAMS, only enter your claims. Counterclaims will actually be the original creditors claims and they're responsible for adding them or not according to JAMS rules.
  5. The Plaintiff would need to produce this detail. There is enough mention (IMO) over the internet of FIA not being absorbed into BofA until 2014 that I think you could argue the point. Looking at this CFPB order, it's hard to tell the relationship between FIA and BofA other than they're both named as banks, not one as a servicer for the other. Separate agreements, signers and such. You could also argue the definition of "service provider" and how FIA isn't one, see paragraphs 4(b) and (t). http://www.consumerfinance.gov/policy-compliance/enforcement/actions/bank-america-fia-card-services/ Another thing that sticks out in my mind is years ago when sitting in the courtroom hearing a JDB atty having to explain to the Judge why FIA was mentioned in Plaintiff's paperwork when they had BofA on there as well and were saying it's an original creditor action. This was without a defendant present to bring it up.
  6. @daxbr this sounds like Portfolio who has to put that in their mailings. If you hear from another JDB about it that's also against their consent order.
  7. @HIWes on the credit report entry from the original creditor, when does it show the account was opened? @fisthardcheese it seems like MBNA would be what you'd go with. Wouldn't another argument be that any MBNA card would have ended up with FIA Card Services. It may be part of Bank of America but a different corporate entity. Similar to the American Express Centurion Bank or American Express Bank, FSB, who is the proper plaintiff argument. I see BofA finally did take over FIA in 2014 but any agreement with Bank of America on it would have been years after the OP's account was closed and they couldn't be held to it.
  8. OP can take a look at consumer cases in JAMS where Discover was a participant. https://www.jamsadr.com/consumercases/ If they're still set on waiving arb and fighting this in court, might be a good idea to check past cases at the county courthouse/clerk website with Discover and this lawfirm to see how they turn out and any weaknesses. A consult with @LawKitty would be a good idea as well.
  9. @Jacquephx If you're going to stay in court, check the many Texasrocker threads out. If you're going to do arbitration, you'll file a general denial answer with private contractual arbitration as an affirmative defense and file your Motion to Compel Private Contractual Arbitration. That pile of stuff they sent was an unsuccessful attempt to be in compliance with the numerous consent orders Citi and Portfolio are under. See recent thread for filing arb-
  10. @debtzapper I understand and it should make the OP getting approved a quick three step checklist. Just reading the cases and statutes got me to wondering why they put that "merits" section 4 in there. Was it due to past scenarios such as a defendant in a debt case showing the Judge his counterclaim he wants to take to arbitration and the Judge saying that's a weak case, I'm not going to waste the time sending this to arbitration when I can just deny it now?
  11. @fisthardcheese would you go with AAA or JAMS for this one? It looks like Discover is registered at AAA, so no additional costs can be ran up for that and JAMS fees run higher. Does it seem like JAMS is the way to go? @yescats was the MTC Arb you used the one found as a template on this site? Did you request JAMS or AAA? Are you planning on asking Discover to pay your fees?
  12. @debtzapper When they say "whether an arbitrable issue exists" (can a wrongful death case be sent to arbitration) is different than what I mentioned from 682.03 (4). Using the three issue test I think a plain old sued for debt case is easily going to meet #2 standards, yes an arbitrable issue exists. The case you posted is along the lines of one I ran across where a payday loan company locked the doors on a debtor who dropped by their offices for a payment extension- you aren't leaving until you pay- false imprisonment. Payday loan company of course thought this should be decided in arbitration by the agreement. I would think "whether an arbitrable issue exists" would encompass "the court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established" but for some reason it's got its own line in the statute.
  13. If the OP used the Linda7 thread MTC Arb template it does have Concepcion in there but not Greenwood. It would be a good idea for them to re-read the MTC they filed with the court prior to the hearing along with their card agreement.
  14. It's the one I pointed out earlier linked above. The idea is the costs to even get in the door are prohibitive so they'll want to just dismiss the court case if you'll drop arb. Weeks after starting this thread you now mention it's Discover, the original creditor suing. They are more likely to follow you in than a JDB. If you have the cardmember agreement you're using for your MTC Arb, it might help if you post it here. If you want to request assistance with your filing fee for AAA or JAMS you should contact Discover at the address in the agreement now, send a copy to their atty as well.
  15. Are you staying in court or planning on private contractual arbitration? I thought this was Magistrate but the document you posted on July 28 shows Common Pleas?
  16. @Rm11 one method you could look into is an agreement they will not respond to a credit agency dispute regarding your account after you've met your part of the agreement. It would drop off that way. What happens after I complete the credit dispute form? When you question information on your personal credit report and tell us specifically why you believe the information is inaccurate or incomplete, we contact the source of the information directly by telephone, by letter or through an automated verification system. We ask the source to check their records to verify all of the information regarding the item you questioned and report back within 30 days of the date that we received your request (21 days for Maine residents). Once we receive their response, we'll send you the results of the investigation. If we do not receive a response within 30 days (21 days for Maine residents), we'll update the item as you have requested or delete the information and send you the results. When we complete our investigation process, which may take up to 30 days, we'll send you the results. http://www.experian.com/disputes/faq.html
  17. I think #2 can be removed as a requirement since the arb code posted above 682.03 (4) states the court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
  18. The consumer rules for AAA and JAMS are at their sites. You should know them. It will come in handy if the Plaintiff contacts you trying to get detail to talk you out of this when you're able to tell them you aren't able to share information without the arbitrator's approval except for a settlement offer. Requesting in person hearings also raises the bill for them. If you don't read the rules you won't know these things, so if you're going to arb read them. Know your card agreement back and forth as well.
  19. When your MTC Arb is approved and you get an order to arbitrate, file your demand with JAMS or AAA following their procedure and Plaintiff gets copies. Some states consider the burden is on the Plaintiff since they brought the claim into court to begin with but Florida is not one as far as I know. You should initiate. The idea is it will be so expensive they won't follow you into arbitration and you'll be able to come back to court asking for a dismissal due to this. If you feel more comfortable trying your case in court and want to drop the MTC Arb and the upcoming hearing date that will pretty much waive your right to arbitrate. Once waived, to get back into arb after that would probably require permission from the Plaintiff.
  20. 682.02 sets up having a valid agreement to arbitrate. When you have that you proceed to 682.03 Proceedings to compel and to stay arbitration.— 682.03 Proceedings to compel and to stay arbitration.— (1) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement: (a) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate. (b) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. (2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate. (3) If the court finds that there is no enforceable agreement to arbitrate, it may not order the parties to arbitrate pursuant to subsection (1) or subsection (2). (4) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established. (5) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in s. 682.19. (6) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section. (7) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim. The FAA governs your agreement. The Florida code can also be referenced if it basically mirrors the federal one which it does. FAA section 4 A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.
  21. Make it sound a bit different. They aren't collecting a debt they are breaking the law. That NYTimes article had an interesting strategy to use when the card agreement issue comes up- Midland Funding, the unit of Encore Capital, persevered despite originally lacking a copy of a Citibank arbitration agreement they said he signed in 2003. Instead, the debt collector presented as evidence a Citibank contract that one of Encore’s lawyers signed when he opened an account.
  22. Those card agreements are broadly worded, past/present/future claims even before there was a relationship. If it's already been tried in court with a judgment issued, it seems like you'd still be able to do it without waiver setting in. If you have protected income and they grabbed it, sounds like new type of claim to me ready for arbitration. No waiver since it's unrelated to the original proceeding.
  23. The FAA and FL arbitration code (682.02 and .03)already has you covered. If it's in the agreement, they'll be going to arb unless you waive your right to arb.
  24. For Florida, I'm not sure how/why the court ordered mediation for a debt related case although it wouldn't seem to be due to Plaintiff's request since the type of case should exclude it. Two outs to point to are bolded below. Fl Statutes 44.102 Court-ordered mediation.— 44.102 Court-ordered mediation.— (1) Court-ordered mediation shall be conducted according to rules of practice and procedure adopted by the Supreme Court. (2) A court, under rules adopted by the Supreme Court: (a) Must, upon request of one party, refer to mediation any filed civil action for monetary damages, provided the requesting party is willing and able to pay the costs of the mediation or the costs can be equitably divided between the parties, unless: 1. The action is a landlord and tenant dispute that does not include a claim for personal injury. 2. The action is filed for the purpose of collecting a debt. 3. The action is a claim of medical malpractice. 4. The action is governed by the Florida Small Claims Rules. 5. The court determines that the action is proper for referral to nonbinding arbitration under this chapter. 6. The parties have agreed to binding arbitration. 7. The parties have agreed to an expedited trial pursuant to s. 45.075. 8. The parties have agreed to voluntary trial resolution pursuant to s. 44.104. (b) May refer to mediation all or any part of a filed civil action for which mediation is not required under this section. http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0044/Sections/0044.102.html http://www.flcourts.org/core/fileparse.php/254/urlt/ADRResourceHandbook2015.pdf (has all the various alternate dispute rules for the various courts, small claims aka county courts is ran a bit different and so-on)
  25. @LawKitty posts have been disappearing so I'll try again. If the defendant signs an agreement in the mediation hearing will that stick? This came up in Georgia Magistrate court ordered mediation where the Plaintiff JDB Atty brought in evidence that would normally be objected to in court. The Mediator didn't seem to be running things either. Defendant ended up signing an agreement. Their mediation rules state signed agreements are as binding as any others.
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