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dogz1189 last won the day on February 26 2019

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  1. @fisthardcheese @Harry Seaward @Brotherskeeper Update! The plaintiff's office reached out to me and offered to Dismiss WITH Prejudice at our upcoming status hearing in exchange for me to drop my AAA claim. We sort of tentatively agreed over the phone and they emailed me the agreement request. At this point then, I'm glad its sort of coming to a close now. Is there anything else I should prepare for prior to our hearing? I'm expecting to sort of just be handed a copy of the Order stating Dismissed With Prejudice and for me to drop my AAA case and I wouldn't hear about this account ever again.
  2. @Harry Seaward @fisthardcheese @Brotherskeeper @WhoCares1000 So slight update, my case has been filed with AAA and I paid the $200 filing fee. Next steps is AAA waiting for the JDB to make a payment of over $3k ($2.5k deposit) in order to proceed. My suit was for a debt of $2k. So far we have not received a response from the JDB yet. I will have my status hearing at the court house in a couple weeks and the JDB's deadline to make the payment is the day after the court hearing. Is there anything I should be doing or preparing in the meantime?
  3. @Harry Seaward @Brotherskeeper @fisthardcheese Had my hearing and my MTC-Arb was finally GRANTED!!! To be honest, I didn't really have to argue much. From the start, the Judge kept saying how I have the right to arbitrate and that it "clearly states" I can arbitrate any claims. The judge pretty much made the argument for me. He really just wanted to know if the Plaintiff had a valid disagreement against my motion. He kept asking the plaintiff if he agrees or not. Surprisingly the Plaintiff never mentioned the small claims clause. I was fully anticipating this. However, probably because he's just another unorganized JDB lawyer he never thought to mention it and was just fumbling through the paperwork to find something. He tried to bring up costs and got the judge to go on a 2minute lecture about how arbitration will be time consuming, a lot of work, and costly and the judge kept asking if I understood. The plaintiff even mentioned my MTD being denied. Eventually, the plaintiff finally relented and said he didn't oppose the judge granting my motion. The plaintiff then requested that a status date be set however to make sure the arbitration case has progressed. The judge agreed and set a status date. Now next steps I would imagine is that I will have to file my claim with AAA and see how much participation I will receive from the plaintiff? At my status date hearing, can I reasonably simply provide a case number even if not much has progressed by that point? Thank you guys for helping me over the last few months!! I really do appreciate it!!
  4. Thanks!! What do you think of the following.... Citing the following cases…We must first decide whether an agreement to arbitrate exists. Menard County Housing Authority v. Johnco Construction, Inc., 341 Ill App. 3d 460, 463 (2003) (“The issue whether a contract to arbitrate exists must be determined by the court, not an arbitrator.”); see also Travis v. American Manufacturers Mutual Insurance Co., 335 Ill. App. 3d 1171, 1175 (“At a hearing on a motion to compel arbitration, the only issue before the court is whether an agreement exists to arbitrate the dispute in question.”). If there was an agreement to arbitrate, then the trial court correctly compelled arbitration. Travis, 335 Ill. App. 3d at 1175-76.; see also Nelson v. Roger J. Lange Co. (1992), 229 III. App.3d 909, 911; J K Cement, 119 III. App.3d at 669 (“At a Hearing to Compel Arbitration, the only issue for the trial court is whether an agreement exists to arbitrate the dispute in question.”)
  5. @Harry Seaward @Brotherskeeper @fisthardcheese Thank you guys for all your help!!! I feel much better prepared for my hearing soon. Here are the arguments I plan to make at my next hearing… The MTC-Arb should be granted because a valid arb clause exists. The Plaintiff has not objected to the fact that a valid arb clause exists. Per the Supreme Court and IL Case Law, the trial court should only determine if a valid arb clause exists or not In the Plaintiff’s written response, they argued that I waived my right to arbitrate by filing a motion. However, per the terms of the Arb Clause, neither party waives their right to arbitrate by filing a motion As that was the Plaintiff’s only written argument against the motion, the MTC-Arb should be granted based on the preceding facts If the Plaintiff brings up the Small Claims statement…. Again, per the Supreme Court and IL Case Law, the court should only determine if a valid arb clause merely exists and both parties agree that a valid clause exists Any ambiguous statements within the arb clause are to be interpreted and determined by the Arbitrator and not the court The small claims statement is ambiguous and can be interpreted in many different ways because “small claims” is not defined within the arbitration clause Per the Circuit Court of Cook County, the small claims division which has “small claims court” in its name was established for claims that do not exceed $3,000. The cases are actually heard in courtrooms on the 13th floor of this building. This case was not filed there. Instead this case was filed in the Civil, Non-Jury division, which are the courtrooms on the 11th floor of this building and does not have “small claims court” in its name. In fact, the division we’re in was established for claims that do not exceed $30,000. That is 10 times the claim limit of the “small claims court” division on the 13th floor here. The division we are in simply can’t be considered solely as small claims because of the really large limit amount of $30,000. There aren’t any small claims courts I’m aware of that have jurisdictional limits of such a large amount that is $30,000 Within the IL Court Rules, rule 281 defines small claims as having a jurisdictional limit of $10,000. Again, the jurisdiction we are in is 3 times that limit at $30,000. Choice of Law, or Governance, for the credit card agreement is South Dakota. Per the South Dakota rules, the jurisdiction limit for Small Claims is $12,000. That is a huge difference of $18,000 in claim limits when comparing that to the division, or jurisdiction we are currently in. The credit card agreement does not define small claims. Because it’s not clearly defined, the court should only determine a valid arbitration clause exists and any statements within the arb clause should be defined and determined by the arbitrator. Citing some cases summaries….. Smola v. Greenleaf Orthopedic Associates, S.C., 2012 IL App (2d) 111277, ¶ 16, 367 Ill.Dec. 786, 982 N.E.2d 936. "`[W]hen the language of an arbitration clause is broad and it is unclear whether the subject matter of the dispute falls within the scope of [the] arbitration agreement, the question of substantive arbitrability should initially be decided by the arbitrator.'" Marks v. Bober, 399 Ill. App.3d 385, 389-90, 339 Ill.Dec. 326, 926 N.E.2d 801 (2010)(quoting Donaldson, Lufkin & Jenrette Futures, Inc. v. Barr, 124 Ill.2d 435, 447-48, 125 Ill.Dec. 281, 530 N.E.2d 439 (1988)). Thus, the trial court is to decide whether there is an arbitration agreement and may decide the scope of the agreement where the terms are clear; but where the parties are in conflict as to the scope of an agreement and the questions presented are reasonably debatable, such questions are to be left to the arbitrator in the first instance. Comdisco, Inc. v. Dun & Bradstreet Corp., 306 Ill.App.3d 197, 203-04, 239 Ill.Dec. 167, 713 N.E.2d 698 (1999). MHR Estate Plan, LLC v. K&G Partnership, 2016 IL App (3d) 150744, ¶ 20 Under the Uniform Arbitration Act (710 ILCS 5/1 et seq. (West 2010)), the parties are bound to arbitrate those issues that they have agreed to arbitrate. Smola v. Greenleaf Orthopedic Associates, S.C., 2012 IL App (2d) 111277, ¶ 16, 367 Ill.Dec. 786, 982 N.E.2d 936. If a dispute is clearly within the arbitration clause, the court should order arbitration. However, if the dispute is clearly not within the clause, then there is no agreement to arbitrate, and the court should deny arbitration. If the scope of the agreement is reasonably in doubt, then the meaning of the arbitration clause should be determined by the arbitrators. State Farm Mutual Automobile Insurance Co. v. Hanover Development Corp., 73 Ill.App.3d 326, 328-29, 29 Ill.Dec. 299, 391 N.E.2d 562 (1979) (citing School District No. 46 v. Del Bianco, 68 Ill.App.2d 145, 154-55, 215 N.E.2d 25 (1966)). Any other thoughts I should consider?
  6. Ah okay, I appreciate the opinion! I have a few weeks to continue thinking about this and come up with all of my arguments. Seems like a long shot, but what else can I do besides settle. What made me think of finding the Illinois court rules was the "Small Claims Summons" Forms (attached) that our county provides. They're all titled, "Small Claims Summons (Claims not to exceed $10,000)." The plaintiff obviously didn't use these specific forms when they filed the suit. The forms they did use don't mention small claims at all. It just makes me wonder what slight chance, if any, I have at beating them. CCM0751.pdf CCMN652.pdf CCMN751.pdf
  7. @Harry Seaward So as I'm researching more, everything I'm seeing online for IL - Cook County is: small claims court is defined as cases seeking amounts of $10k or less. As I'm trying to think of any interpretation they can make. "Rule 281. Definition of Small Claim (Link) For the purpose of the application of Rules 281 through 288, a small claim is a civil action based on either tort or contract for money not in excess of $10,000, exclusive of interest and costs, or for the collection of taxes not in excess of that amount. The order entered December 6, 2005, amending Rule 281 and effective January 1, 2006, shall apply only to cases filed after such effective date." So is my literal arguments for this part... We are not currently participating in the small claims court that has a limit of $3k (even though it says "Pro Se" Small Claims court in the name? Since the current division we're participating in has a limit of three times the suggested amount ($30k), this simply cannot be considered small claims court?
  8. Thank you that's very helpful. Choice of Law for the Agreement is the state of South Dakota. Here are some details i have found initially... Reading this, I see similarities and differences..... $12k limit vs $30k limit of the court i'm in However, "a collection agency may act for a client who has made proper assignment of a debt." Am I missing anything here?
  9. I am cook county. I was totally not aware of a "pro-se small claims court". Wow, interesting. This kind of makes me feel better and makes me feel I can take a shot. I have nothing to lose at this point so might as well try it. So instead of this being small claims, it looks like it's "Civil Section, Non-Jury"? Civil Section, Non-Jury In general, the cases heard in the Civil Non-Jury Section of the First Municipal District are suits seeking monetary damages of $30,000 or less in which the parties involved have opted to have a judge decide their case instead of a jury. The Non-Jury Civil Section courtrooms are 1101, 1102, 1104, 1106, 1108, 1110, 1112, and 1307 in the Richard J. Daley Center. My case has always been heard in one of these 11xx courtrooms. The overwhelming majority of the cases in the Civil Non-Jury Section involve contract disputes, most of which are collection cases. Pro Se Small Claims Court The Pro Se Small Claims Court of the Circuit Court of Cook County is a section within the First Municipal District. Judges are assigned to Pro Se Small Claims Court on a rotating basis. Persons who choose to represent themselves in court without the aid of an attorney are known as pro se litigants. This is because pro se is Latin for “for himself” or in one’s own behalf. The Pro Se Branch of the First Municipal District’s Small Claims Court was established to give people without lawyers the opportunity to pursue their claims for small amounts of monetary damages in a quicker and less expensive way than traditional litigation. The Pro Se Branch works as follows: The person filing the complaint (the plaintiff) must be pro se; attorneys are not allowed to file complaints on behalf of clients in this branch. Plaintiffs may seek monetary damages only up to $3,000.00. Defendants can defend against the complaint either pro se or with an attorney. If the defendant appears with a lawyer, the plaintiff has the right to hire an attorney, and the case remains in the Pro Se Branch of the Small Claims Court. The judge refers all cases to mediation before hearing the cases to give the parties the opportunity to reach a solution to their conflict on their own. So I can probably argue a small claims court already exists (on the 13th floor) and that I was not sued there. Instead this case is being heard in "Non-Jury, Civil Section" courtrooms (on the 11th floor), which is not considered small claims per the Circuit Court of Cook County? Ultimately, if the judge disagrees, I do want to pursue the appeal route. I wouldn't mind the effort it would take. Anything to piss these bastards off more.
  10. UPDATE!! I feel like i'm now in a screwed position. Long story short.... After I filed my MTC-Arb, judge ordered the plaintiff to respond within 21 days, and for me to reply to their response within 14 days of that Plaintiff responded 3 days late on Day 24 and filed a motion to allow the late filing I responded within 14 days of their late filing - stating their late filing should be denied Within the platintiff's response, they argued that I waived my right to arbitrate because I filed a motion to dismiss the same day I filed my MTC-ARB In my reply, I stated their late filing should not be allowed and that I did not waive my right to arbitration as stated in the clause, neither party waives they right by filing a motion, etc. After appearing in court for my motion hearing, the court couldn't find courtesy copies of the filings and instead continued the case for another date for the hearing I then had my rescheduled hearing this week.... Their team of attorneys kept telling me prior to being called up before the judge that Arbitration would be too expensive for me and that i would have to pay over $2.5k in costs just for arbitration alone and that my case "isn't even worth the cost of arbitration." blah blah blah. And asked if I wanted to just settle instead. I said no to the settlement and said I want to move forward with Arb. There was an apparent shortage of judges and clerks on this day and so we had to wait about 40 minutes after the scheduled hearing time for a judge to finally walk in. Right before the judge starts calling up cases, I noticed the platiniffs were finally reading my filings and arbitration agreements (because obviously there was nothing else to do but sit and wait in the room for the judge). Specifically, I see one attorney point out to his partner the "small claims" clause in the agreement. At that point, I almost gasped, because they did not even read the agreement before-hand or knew about the small claims part until they finally read it literally seconds before our case is called up. We're called up to the judge.... Judge didn't even want to hear about the late filing at that moment and instead just wanted to quickly determine if I did indeed waive my right to arbitration or that the arbitration agreement had a valid standing Plaintiff argued that I did waive my right I then said I didn't because of what's stated in the arb clause, judge was surprised to hear this That's when the plaintiff finally mentioned the small claims piece he literally found out about seconds before being called up I tell the judge this was not mentioned in their written response to my motion Judge then decides to just continue the hearing for a date next month and suggested that we "work it out" before then. The plaintiff then says he wants to state for the record how arbitration is too expensive for both parties blah blah blah. Judge agreed with how expensive it is and scoffed at how low my dispute amount is ($2000+) and repeated we should just "work it out" before the next hearing date and that arbitration is very expensive for both parties as she knows first-hand. I now have my motion hearing re-scheduled again for next month. At this point, they are now aware of the small claims statement. Although each time I show up to court, it's a different judge and different plaintiff attorney. I have seen 4 different judges and 5 different attorneys for this same case. At one point I felt I was in a good position because they filed late, and didn't argue the small claims statement in their response. I was definitely expecting my MTC-Arb to be granted based on those facts alone. Now that at least the attorneys from today are aware (who knows if they communicate this detail to the other 3 attorneys i've met before the next hearing), I feel like I have no good options at this point. I'm seeking help because I'm at a standstill. I know citi arb agreements are the I really have any options at this point?
  11. When re-reading the arbitration clause, the following statement sticks out to me.... Arbitration may be requested at anytime, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA. Can't I literally interpret that as I do not waive my right to arbitrate by filing a motion in a court lawsuit?
  12. So I took your advice and went to the courthouse today to grab a copy of what was filed.... They filed a "motion to allow late filing".... On xxxx, 2018, this Court entered an order denying Defendant’s Motion to Dismiss and granting Plaintiff 21 days to respond to Defendant’s Motion to Compel Arbitration. Plaintiff’s delay in filing its response was due to Plaintiff’s attorney’s inadvertent scheduling error. They filed their response on Day 24. Plaintiff now seeks to file the attached response. Plaintiff’s request for late filing is not intended to cause undue delay or to prejudice Defendant. They then attached their response... Preamble Defendant seeks to compel arbitration by bringing this motion. However, Defendant has waived his right to compel arbitration by previously filing a Motion to Dismiss pursuant to 735 ILCS 5/2-615 instanter on xxxx, 2018. Facts 1. On or about xxx, 2018, Plaintiff filed a complaint to collect monies due and owing from the delinquent charge account. 2. On xxxx, 2018, Defendant was served with alias summons and said complaint individually. 3. On xxx, 2018, Defendant filed his appearance, which set the case on the Court’s trial call on xxxx, 2018 at xxx AM in court room 1xxx. 4. On xxxx, 2018, Defendant failed to appear and the case was continued to xxx, 2018. I actually sent a representative as I was traveling out of town for work. A different judge was handling this trial call agreed to my representative's request to continue the case 60 days out. 5. On xxx, 2018, Defendant appeared and was given leave to file his Motion to Dismiss pursuant to 735 ILCS 5/2-615 instanter and his Motion to Compel Arbitration instanter. 6. Defendant’s Motion to Dismiss pursuant to 735 ILCS 5/2-615 was denied on xxx, 2018, and his Motion to Compel Arbitration was given a briefing schedule and set for hearing on xxxx, 2018. Argument 7. It is well established that a party waives its right to compel private arbitration by submitting issues that are arbitral under the contract to a court for decision. State Farm Mutual Automobile Insurance Co. v. George Hyman Construction Co., 306 Ill.App.3d 874, 885, 715 N.E.2d 749 (1999). The “existence of a waiver is determined by the types of issues submitted, not by the number of papers filed with the court.” Kostakos v. KSN Joint Venture No. 1, 142 Ill.App.3d 533, 536-537, 491 N.E.2d 1322, 1325 (1986) citing Applicolor, Inc. v. Surface Combustion Corp., 77 Ill.App.2d 260, 222 N.E.2d 168 (1966). In Atkins v. Rustic Woods Partners, Defendants sought arbitration after previously filing motions to dismiss pursuant to section 2-615. 171 Ill. App.3d 373, 379, 525 N.E.2d 551, 555 (2nd Dist. 1988). The court concluded “defendants’ participation in the judicial forum was inconsistent with their contractual right to require arbitration and was an abandonment of that right” Id. at 556; See Feldheim v. Sims, 326 Ill.App.3d 302 (1st Dist. 2001) (holding defendants submitted substantive issues to the court by way of their 2-615 and 2-619 motions to dismiss, thus waiving their right to arbitrate the dispute). 8. Here, Defendant filed a 2-615 motion to dismiss for failure to state a claim instanter on xxx, 2018. This motion raised substantive issues of law regarding Plaintiff’s pleading requirements that would otherwise be arbitral. In doing so, Defendant has necessarily waived his right to arbitrate, and his motion to compel arbitration must be denied. WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant’sMotion to Compel Arbitration and for such further relief as this court deems just and reasonable. As mentioned before, the first time I appeared before the judge, I requested leave of court as required. I filed a MTD (lack of written instrument) which was denied, and then filed a MTC-Arb....all during the same hearing. Has anyone seen this argument before against arb? I was expecting a different argument for that one clause. The agreement I filed is attached. Here is what I argued in my MTC filing.... Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached). 3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) YOU OR WE MAY ARBITRATE ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN YOU AND US ARISING OUT OF OR RELATED TO YOUR ACCOUNT, A PREVIOUS RELATED ACCOUNT OR OUR RELATIONSHIP. (b) IF ARBITRATION IS CHOSEN BY ANY PARTY, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM. (c) ALL CLAIMS ARE SUBJECT TO ARBITRATION, NO MATTER WHAT LEGALTHEORY THEY’RE BASED ON OR WHAT REMEDY (DAMAGES, OR INJUNCTIVE OR DECLARATORY RELIEF) THEY SEEK, INCLUDING CLAIMS BASED ON CONTRACT, TORT (INCLUDING INTENTIONAL TORT), FRAUD, AGENCY, YOUR OR OUR NEGLIGENCE, STATUTORY OR REGULATORY PROVISIONS, OR ANY OTHER SOURCES OF LAW. (d) TO CHOOSE ARBITRATION, A PARTY MAY FILE A MOTION TO COMPEL ARBITRATION IN A PENDING MATTER AND/OR COMMENCE ARBITRATION BY SUBMITTING THE REQUIRED AAA FORMS AND REQUISITE FILING FEES TO THE AAA. (e) THIS ARBITRATION SECTION OF YOUR AGREEMENT IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA). 4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides: “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity forthe revocation of any contract”. 5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a “liberal federal policy favoringarbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. , (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. , (2010) (slip op., at 17). This purpose isreadily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 6. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration in AAA pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending the outcome of the arbitration. What are you guy's thoughts? I appreciate all insight! CMA_PID056.pdf
  13. Thanks for the detailed information! I just checked the court docket and see that exhibits/motions were filed by the plaintiff the end of last week. So turns out they were just very last minute with it unfortunately. I don't know what they actually filed yet but the docket does say a notice was filed, so i'm assuming i'll receive something in the mail over the next day or 2.
  14. As an update, it has now been over 3 weeks since filing my MTD. The judge ordered the plaintiff 21 days to respond, and then I would be given 14 days from then to respond myself. To this day, I have not received any notice of a response from the plaintiff. As the motion hearing is a few weeks away, would he be able to just dispute it at the hearing? Or was it “mandatory” for him to respond? Anything I should expect now? Again, thanks in advance for any and all help!!!
  15. Thank you guys for the great perspectives and insight. I guess since the Judge gave him 3 weeks to respond to my motion, I will have to play the waiting game and see what his argument against it is, “IF” he evens brings up that small claims statement. I would then have to construct a counter-argument based on his claims. Is that the appropriate “next-steps” action plan for myself at this point?