fisthardcheese

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Everything posted by fisthardcheese

  1. If the attorney sent a letter saying they want to work out a deal, then I would email them and tell them that in the interest of further time and expense, you are willing to offer their client a mutual dismissal with prejudice. You agree to drop the JAMS case with prejudice and they dismiss the court case with prejudice. See how they reply to that email.
  2. Reading up on how to counter an MSJ can't hurt, but you can't really prepare a response until you know what their arguments are going to be. You would have to respond to each point they bring up in an MSJ and respond to each specifically.
  3. It is unless there is a court order. If you have a granted Motion to Compel Arbitration from court, AAA will honor that court order.
  4. Yes, let us know the original credit card bank and we can help better. If arbitration is part of the card agreement, then I would suggest to file a motion to compel arbitration in place of a simple answer. The link in my signature below has a ton of information on how and why arbitration works in cases like this, but we do need to make sure that your account has that option available.
  5. Then unless something crazy happens, I don't see a need to contact or file anything with the court any more. You have filed and complied with this court order, your part is done and the case is closed. Now you just wait to see what happens with the arbitration case.
  6. I doubt it is necessary. Usually those are just courtesy additions to make it easier for the judge, but double check your court's rules and see if it says the proposed order is a requirement for filing a motion. If it is REQUIRED, then just print out that single page and bring it to the court and tell the clerk that it was accidentally left off of your filing and ask if they can just add it to your motion in the file. It is a simple fix if necessary.
  7. I would hold off. It has never been clear to me, is the court case still open and just stayed, or was it fully dismissed?
  8. Don't worry about listing the attorney as a second respondent. That will just needlessly complicate things for you. There is enough case law to show that an attorney's actions make the JDB liable for vioaltions that occur. Don't over thing, you just are doing an initial filing that can be changed after an arbitrator is appointed. Just list your breech of contract (it's a very weak claim, but you can drop it later like I mentioned) and FDCPA violation. You don't need to go into detail on this initial filing, so leave it at that for now. You can expand or drop the claims later when you need to. Most important is to just get it filed.
  9. No need to send an extra letter. Serving the MTC is the notice to arbitrate. Serving on the e-file is likely perfectly fine, but there is nothing wrong with also sending a CMRRR copy as a way to have hard proof of service should the unlikely event of them trying to question service comes up. You don't show their refusal to arbitrate in the MTC. You only need focus on the very strong case laws in both TX and the US Supreme Court that state that a valid agreement to arbitrate MUST be honored. You cite those cases, then state that your card agreement has a valid arbitration clause in it (which you back up with your affidavit testifying that the card agreement you submitted as evidence is a true and correct copy of the contract between the parties).
  10. look up your case on the court's website, or if that is not available, call the Clerk's office and ask if the case is still open or if it is closed. You must file the arbitration case no matter what, unless you get an agreement with the other side before hand. Even if the case is closed, you still are under a court order to arbitrate, so I would absolutely not be the party that violates that order.
  11. If the judge did indeed dismiss your entire case already, then asking for a dismissal with prejudice isn't quite accurate. What I would do is file JAMS immediately. It cost nothing but a few prints and a couple CMRRR packets mailed off. Once JAMS confirms the case, and the attorney has received my filing showing I am claiming their violations (whatever claims you may have against them), then I would email the attorney for a mutual release of all claims. If, in fact, the court shows this case closed and dismissed, then the proper settlement is just between the parties and not through the court anymore. This means, all you need is a settlement agreement signed by both parties that says you each agree to a release of ALL claims against the other. That is a contractual equal to a dismissal with prejudice. If they tried to sue after that, you bring the contract to court, show that they agreed in writing that there is NO claim they can bring against you and then you get to sue them back for breach of contract and the FDCPA violation.
  12. Yes, PRA seems to be either hiring cowboy attorneys or in some states they are deciding to eat the arb costs an come out negative or even for some odd reason. But this is not ALL PRA cases. However, one you file and have confirmation of acceptance from AAA, be sure to let us know each step in the case because dragging your feet and making sure things are done in a long, drawn out and deliberate manor with PRA is more essential than before.
  13. Wait, wait, wait. Your case was dismissed in court???? Then DROP THIS. It's over. Why are you trying to open up something against yourself???? If this were me, I would be super thankful that AAA closed the case due to omission and LEAVE IT ALONE.
  14. AAA rejected your filing for not including something, or some how they didn't recieve it, either way it doesn't matter. Simply start over. Don't even think about anything else dealing with AAA up to this point as it will only add confusion. Start over from scratch. Start with the Demand Form. The instructions are right on the form. Read them and double read them. Go slow and deliberate in following those instructions. You have a granted MTC from the court, correct? Include that with your filing. Email the new filing and CC the PRA attorney.
  15. The JDB has to go back to court and have the arbitration award confirmed by the court before they could garnish. Should that happen, you can still negotiate a settlement for the judgement amount, either by paying the lump sum or asking if they will accept monthly payments.
  16. In some instances, JDBs hire their own process servers. In those cases, it COULD be argued that the server is an agent of the JDB. It probably wouldn't be as easy of an argument, but if I were in arbitration (not COURT), I may at least make the claim initially in order to conduct discovery on the process of service and how the server was contracted by the JDB. If nothing else, it is a good use of time (and therefore the JDB's arbitration retainer) should the arbitration process get that far along.
  17. Do you have any actions they took you can point to? If so, I would state that I intend to file a brief at the appropriate time outlining the XYZ violation. I would then follow up with a settlement offer by stating that in the interest of further time and expense, I am willing to offer their client a mutual release and dismissal with prejudice of all claims by both parties. I would set the expiration date for my offer as the same date payment to JAMS is due.
  18. You do what you feel is right for you. If it is me, and I get a granted MTC from court, I would never offer a dollar to settle. The MTC flips the leverage all in your favor. But again, that's me and you should do what you feel is best for you.
  19. We all started the exact same way. By the end of this, you will be ONE OF US. Just continue to take a break and re-read everything and be slow and deliberate with both reading and responding. Perfect. Short and to the point, exactly how I do it.
  20. No. There is no 3-person arbitration. This is just the start of your case, and the Admin is asking if you are representing yourself so that they can file it with the Pre-Se Admin staff. I would simply email back and state that I am representing myself pro-se and that this is a CONSUMER arbitration matter. He can object, and you can respond to the objection demanding an in-person hearing citing the consumer rule regarding such. Also state that you intend to ask Barclay's to present a live witness with first hand knowledge of your disputes and on-going issues with your account. Researching the laws and knowing what laws they violated should have been done well before filing the case. Regardless, you must do this NOW. You need to start working on a full brief that clearly lays out what happened, what actions you took and what actions or inaction THEY took and how those actions or inactions violated which laws. Both CA and Federal laws. Some laws to look up would be any California Unfair Business Practices laws (sometimes referred to as UDAP laws), the Federal Fair Credit Billing Act, the Fair Credit Reporting Act, and potentially the overly complicated Regulation Z part of the CFB (Truth in Lending Act). Since it is early, you have at least a month, so I would put together a formal brief and have it ready. The first step is that Barclay's will get a $5k bill from AAA. They will pay it. Then an arbitrator will be appointed and contact you to set a date for an initial phone conference. The initial conference call is to set dates for discovery and the hearing. During the call, ask the arbitrator for permission to submit a formal brief outlining your full dispute. You can ask for 30 days or so to have it submitted if you need more time to complete it. He SHOULD grant that. And he will also give the other side time to file a reply to your brief. After that, you need to figure out what discovery items and questions to send to Barclays to prove that the charge was not yours and that they did not refund any amount you paid in error and start to have documentation to back up your brief that can be presented at the hearing. Because of COVID, I would expect that an in-person hearing will likely be denied, but I would still push for at least a Zoom call hearing.
  21. Have you had your first phone conference with the arbitrator yet? Did they ask for fees in their reply brief? If they did, then I would simply send an objection to fees at this time citing the AAA Consumer rules and noting that you are making the objection now, per Rule # XYZ as to not wave your rights to any of the AAA Supplemental Consumer Rules. The rest can be dealt with during the initial conference call.
  22. Not filing a motion, but sending a letter that acknowledges you filed an MTC but they intend to circumvent that is a POTENTIAL violation. Nothing solid, but good enough that I would use it when I filed my JAMS case and let them spend all the money to counter argue that it isn't a violation.
  23. That's alright. I would still try to find some in case there is a hearing and you can cite it at that time if needed. The Judge knows what the laws are for summary judgement anyway, it's just more of a formality. If he finds that your argument regarding the MTC is proper, he will use the established law to rule against summary judgement.