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kittycat

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kittycat last won the day on July 7

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  1. Arizona case law is consistent with staying, rather than dismissing, the action pending the completion of private arbitration. So, there really isn't any argument against a stay. Since they have no objection to your motion to compel, the court will very likely grant your motion and issue an order. The order will probably come sooner than if the Plaintiff had opposed the motion. Does the Plaintiff's lack of objection to private arbitration mean that the Plaintiff will promptly pay the arbitration costs and participate in the arbitration process without delay? Perhaps. There is only one way to find out. Regarding the motion to waive appearance of real party in interest, Arizona rules require that the actual party (or, in the case of a company, a company representative) appear at the mediation hearing. The idea being that only the party can decide what compromise or agreement could finally settle the case. An attorney typically has to bring any offer to their client for approval, and can't finally settle the case until they consult with their client first. So, a mediation without the client present is likely to be a waste of time if the actual decision making party is not present. That being said, it is typical in debt cases in Arizona for the Plaintiff to file a motion to waive this appearance, and the motion is almost always granted. If you don't want to go to the mediation hearing, you could file a response which argues that given that the Plaintiff filed a response to the motion to compel private arbitration in which they expressly stated that they do not oppose private arbitration, and given that private arbitration is inconsistent with court mediation, that the Plaintiff's motion is moot and should be denied and the mediation hearing vacated. But perhaps you want to go to the mediation hearing to see if an agreement can be reached. It almost never happens, but you'll have to decide for yourself.
  2. That explains the lack of court review. It appears that § 8.01-246(4) was changed during the 2019 Session. Creditors probably started keeping better records of signatures shortly after the law was changed. OP should attempt to calculate the accrual date as accurately as possible, because the debt buyer surely will once this defense is raised.
  3. A payment could potentially be the the last transaction, but probably not if it was unsuccessful. But that doesn't mean that they won't argue otherwise.
  4. That sure can't hurt your SOL defense. Affidavits that attest to a range of possibilities usually aren't saying much at all.
  5. Usually, in most states, the accrual date (the date on which the clock begins to run for a particular claim) has some relation to the date of default, not the date of last transaction.
  6. This might also be a good idea just to review the SOL issue. There is very little authority about the statute of limitations for credit cards (in particular) in Virginia, though the former Attorney General of Virginia (Kenneth T. Cuccinelli, II) wrote a non-binding advisory opinion in 2011. Not much has happened in the decade since. Trial court level decisions can still go either way, whether an actual signature (or its electronic equivalent) of some form is introduced into evidence or not. In mid 2013, a Virginia bankruptcy attorney wrote the following to his blog; Six years later, in mid 2019, he wrote the following; This probably means that there hasn't been any appeals court review during the intervening period. His "probably" qualifier as it pertains to debt buyers seems to rest on his experience that they are less likely to be able to produce a signature (or signature equivalent) as compared to the original creditor. It's likely that if you raise SOL as an affirmative defense, the debt buyer will argue that the longer five year period applies. They may very well be wrong, but you'll still need to be ready to address whatever arguments they make. I'm not sure if "C1" refers to credit one or capital one, but if whichever one it is just dumped a pile of documents on the debt buyer (after the first suit failed), there might be a greater chance that those documents include a signature equivalent as compared to the ordinary debt buyer case.
  7. Yes, you/your refers to WebBank, or for the purposes of the lawsuit, Velocity. How do you interpret this sentence? In what way has it been misread? There is allocation of fees and reallocation of fees. The consumer arbitration rules of the arbitration forum limit the initial allocation of fees to you. The language in the arbitration provision of the promissory note, as well as consumer arbitration rules of the arbitration forum, limit the later reallocation of fees to you. The language in the promissory note also provides for an in-person arbitration hearing. JAMS has resumed in-person hearings. Leverage is less if you agree to a zoom virtual hearing rather than an in-person hearing.
  8. When it comes to arbitration costs (whether they be filing fees, administration fees, or arbitrator fees), there is the matter of which party pays which portion of them in the first instance. In other words, how will the administrator (JAMS or AAA) allocate the initial charges and who be responsible for paying them when initially billed, in order to even start the arbitration. If JAMS or AAA accepts the arbitration as a consumer arbitration, they will always allocate the initial charges according to their consumer rules. There has been no reported deviation from this practice for any consumer arbitration. If the non-consumer party argues that the contract limits their responsibility, the case manager will defer that argument to be made after the arbitrator is selected. The non-consumer party still must pay the upfront costs in order for the arbitration to proceed, and if there is a court order to arbitrate in effect, they may violate the order if they fail to comply. After the arbitrator is selected, the consumer rules usually prohibit the reallocation of arbitration costs and fees to the consumer except in instances of bad faith. Your promissory note has express language to this effect: There are a lot of pronouns in the arbitration language. Some provisions apply to only one party. Replace all of the pronouns with the party names to make this clear. While it is not impossible that the arbitration forum case manager could allocate upfront costs above $1000 to you, it is highly unlikely, so long as the arbitration is accepted by the forum as a consumer arbitration. The odds are greatly against you in proceeding on the merits in arizona justice court. If you file an answer without simultaneously filing a motion to compel arbitration, they will probably file a motion for summary judgment in short order. There would be no risk of arbitration costs, but the risk of a quick judgment is quite high. Arbitration can go bad as well. You'll just have to decide for yourself. You could email the attorney, seeking agreement for a stipulation and order referring the matter to private arbitration. If they are amenable and don't refuse or offer an alternative settlement, that might be some indication about the usefulness of using the arbitration strategy. If you plan to defend in court, file your answer within the allowed time.
  9. If you want no risk, settle. Attached is an image from a webbank agreement. A typical webbank agreement contains language of the sort: Check if your agreement has similar language. I've never seen a webbank consumer arbitration agreement that limits their arbitration cost to the first $1000. Post the entirety of the arbitration clause if you can. Even if you don't plan to use arbitration it won't hurt to include it as an affirmative defense in your answer.
  10. The ARM industry lobbied heavily during the drafting period (2+ years) of this bill and considers the final language a victory for the industry. Ohio Governor Signs Statute of Limitations Bill They claim that they did it all for consumers: The original (2019) language had a three year SOL and none of the ARM industry's preferred language. Through several iterations, the ARM industry's preferred language was dropped and later re-added, but in the end they got most of what they wanted.
  11. They have filed a motion to compel arbitration. In you don't agree, a response in opposition to the motion to compel is in order. One argument might be that the court has already decided the issue, as they concede in their newest motion. They are making the same argument that the court found to be untimely in the past, so now it is even more untimely. They also concede in their newest motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020. Usually a change in terms, or a new agreement, contains language something like; Acceptance of Agreement: You accept this Agreement if you or an Authorized User use the Account. An argument could be made that there was no acceptance of any change in terms or new agreement, and that the agreement that was submitted with your original motion to compel is the governing agreement, since no newer agreement has been accepted. You can support this argument with any additional information about the lack of any activity between the parties at the time they claim to have sent the new agreement, as well and before and after that time. You could also argue that you've already expended time and expense to file the case with JAMS, and that you shouldn't have to refile with a different entity. However, if you argue this, they might reply that they'll file and cover all of the expenses.
  12. The pandemic period caused some debt buyers to realize that their historical court procedures were adaptable to zoom style arbitration hearings at comparable cost. Their custodian and attorney could connect through the same zoom session even though they were each in physically different locations, not much unlike a court trial where the custodian might testify by phone. The elimination of all the travel for an in person hearing and the reduction of time spent on any one arbitration hearing greatly improved the economics of arbitration. Much of the $3900 they paid is a retainer, some of which might be refundable if not used. Even though normal non-pandemic procedures are starting to resume, zoom as a tool in arbitration might be here to stay. If your contract provides for an in person hearing, you might not want to acquiesce to any type of virtual hearing instead. Unfortunately, "in person" might be interpreted by the arbitrator to include a virtual hearing. So, if you lose the argument for an actual in-the-flesh in person hearing, there might not be much you can do about it. Unless you argue that you don't have a computer, phone, or any internet connection. In January 2020, the governor of NJ signed an amendment to the NJRUAA regulating arbitration forums and pre-dispute consumer arbitrations. The language is mostly the same as California's language, in that fee reallocation is not permitted. But since this change is to the NJRUAA, its effect at regulation of an arbitration done under the FAA has not been tested. New Rules Coming for Consumer Arbitration in New Jersey N.J. Stat. § 2A:23B-35
  13. It does. It also incorporates by reference most of the requirements of the FDCPA. Even the arm industry readily recognizes as much. From insidearm: @CitiscamWhat's the current status of your arbitration case? Has an arbiter been selected or is the case still in the hands of the case manager or other forum administrator? For example, when you filed the motion to strike, was an arbiter selected? The particular attorney from Stroock Lawfirm that filed the response to your motion to strike (as described in your first post to this thread) argues CA state law. Was an agreement reached (or a determination made) that CA state law would apply? This is odd because citi usually argues for SD state law in arbitration. It could be that the particular attorney that filed the response to your motion to strike is not fully up to speed about citi's usual position in arbitration. You should not press the choice of law issue unless in response to something the opposition does. Even if at some point some citi attorney argues instead for SD law, 1284.3(a) would still apply to any award confirmation, whether the confirmation is pursued in CA state or federal court. There is precedent (don't recall the cases off the top of my head), and jams and AAA know this, so they usually have an express rule that they will not reallocate arbitration fees to residents of CA (the attorney fee language is not express so you might need to rely on 1284.3(a) if it comes to that). If you argue 1284.3(a) in a reply to their response to your motion to strike, their subsequent actions will indicate if they intend to stick with the CA law arguments made in their initial response to your motion to strike. Argue jams/AAA rules about reallocation in the first instance, and 1284.3(a) in the alternative. Sometime shortly after you're sure they have received your reply with these arguments might be a good time for a settlement offer.
  14. I think that's right. It is not the case in CA. CCP section 1284.3(a) provides that: So, unless I'm mistaken, at the end of the arbitration, regardless of how bad it goes, the ultimate award against you should be no higher than the debt amount. Attorney Fee Provisions in Consumer Contract Arbitration Clauses
  15. Section (iii) looks like delegation to me. If that's right, that means that the arbitrator must decide disputes about substantive arbitrability. So, OP should at least throw that argument into the mix, or maybe even lead with it. See this old thread.
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