Chills22

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About Chills22

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  1. I am in arbitration and the opposing attorney has been very slow to respond to my settlement emails. So it doesn't seem like it is unusual. But that is just my personal experience in one case.
  2. The arbitration section of the 2002 agreement has a survivability clause and the account was closed by Cap 1 in 2013.
  3. So you suggest I just wait until the phone conference and bring up the incorrect agreement? I agree that I want to keep laying bumps in the road to cause extra hearings and filings.
  4. Frustratingly the attorney never responded to my settlement offer with even a counter offer and I was notified that they paid the $5,000 retainer fee. However, the arbitrator is out of town for a few weeks so they are waiting to schedule the pre-arbitration conference call. My plan now is to file an objection to their use of the 2014 agreement instead of the 2002 agreement. Any chance that anyone has examples of something similar I can use? I want to point out that the 2002 agreement allows for an appeal to a 3-person arbitrator panel. Also they did update their counter claim and removed the request for fees. However they still state: Capital One further prays for such other relief as the arbitrator may deem just and proper. Can/should I object to this as well? It seems like a way to open the possibility that the arbitrator can award other fees which I thought the arbitration rules and California law prevented.
  5. I also finally received a response from the attorney asking me to confirm what claims I would be dismissing as a part of the mutual dismissal I proposed. She said she wanted to be sure she accurately communicate my proposal to Capital One. I told her I am proposing that I dismiss the entire arbitration action with JAMS and Capital One agrees to dismiss the case currently stayed in California Superior Court. So fingers crossed. I still need to file an objection based on the card agreement they are trying to use. Hopefully they will agree to a dismissal and I won't have to.
  6. The attorneys just submitted their response to my objection about costs and fees: 2. Neither Code Civ. Proc., 1284.3 nor JAMS Consumer Minimum Standards prohibit parties in consumer arbitration from seeking costs and fees in arbitration. 3. Specifically, Section 1284.3(a) provides: No neutral arbitrator of private arbitration company shall administer a consumer arbitration under any agreement or rule requiring that a consumer who is a party to the arbitration pay the fees and costs incurred by an opposing party if the consumer does not prevail in the arbitration, including, but not limited to, the fees and costs of the arbitrator, provider organization, attorney, or witnesses. Code Civ. Proc., 1284.3(a) (emphasis added). 4. Section 8 of the Consumer Minimum Standards provides: "In California, the arbitration provision may not require the consumer to pay the fees and costs incurred by the opposing party if the consumer does not prevail." What this means is that California law and the JAMS Rules prevent administration of arbitration agreements providing that a losing consumer must pay the opposing party's fees and costs. 5. That is not what we have here. Here, the party's agreement provides: If you are in default, we may take certain actions with respect to your Account. For example, depending on the default, we may take the following actions, without notifying you, unless the laws says we must give notice: (6) file a lawsuit against you, or pursue another action that is not prohibited by law. If we file a lawsuit, you agree to pay our court costs, expenses and attorney fees, unless the law does not allow us to collect these amounts. (See Counterclaim, Ex. 1 (Agreement) (emphasis added)). (My note: this is a 2014 agreement, not the 2002 agreement from when I opened the account that I used to get into arbitration.) 6. This contractual provision simply states that if Capital One files suit and prevails, Claimant agrees to pay Capital One's fees and costs. The Agreement does not say that if Claimant does not prevail, he must pay Capital One's fees. This is a distinction with a significant difference. 7. Moreover, even if the Agreement did contain language that conflicted with California law and JAMS rules, the Arbitration Agreement in this matter is governed by the Federal Arbitration Act, which preempts contrary state law. (Lists 3 examples of case law.) 8. Notwithstanding the fact that the parties' contract does not conflict with California law or JAMS Rules, and even if it did the law would be preempted by the FAA, in an effort to avoid further litigation of this issue, Capital One is amending its Counterclaim to remove any demand for costs and fees.
  7. They filed before the SOL. This has been going on since 2016. I still have not heard anything from JAMS or the attorneys.
  8. Thank you. I filed the case in JAMS. I had a MTC approved in Superior Court and filed the case. I did submit my objection to their request for fees and included JAMS rules and California law in the objection. I emailed the attorney after the first retainer invoice was sent out and asked if they would agree to settle with a mutual dismissal. That was over a week ago and they have not responded. JAMS has not contacted me to indicate that they have paid yet. The 2002 card agreement states that each side is responsible for their own fees.
  9. I just received this response to my email. Thank you everyone so much for your help!!! Thank you for contacting our office regarding this case. My client will accept your offer to settle with a dismissal with prejudice and each party agreeing to bear its own costs and fees. Attached is a copy of the dismissal that will be filed with the court.
  10. I sent an email today letting them know again I objected to any witnesses and would be filing a motion requesting an order about the affidavit. I told them if they agreed to a dismissal I would not attempt to get my court fees back. They haven't responded yet.
  11. So should I email the attorney and let them know that I sent them a letter objecting to any witness they intended to call and I will be filing a motion in limine regarding their affidavit since the person wasn't provided on a witness list and it wasn't signed under penalty of perjury so I would be open to settling with a dismissal?
  12. Also the witness they have stated they want to call is not the person on the affidavit. So I don't know who this person is. Probably one of their employees.
  13. I don't think they have followed the law to be able to call a witness which is why I want to object. I am wondering if this is a way they are trying to get around that. I am just not sure what the judge thinks about issues like this if I do not work with the opposing counsel?
  14. I need help. I sent the letter to opposing counsel letting them know I would be objecting to any witnesses they intended to call on March 9th. I received a letter from them today. The letter says they have been unable to reach me by phone to discuss the trial but want to meet and confer about a possible settlement (might be true because I don't answer calls from numbers I don't know but I haven't gotten any voicemails). It also asks if I would be agreeable to continuing the trial to a date on or after April 12th. They state that their witness for this case (they list a name) is unavailable due to a medical travel restriction. They see to see an attached letter from her surgeon; however, there is no letter attached. (Reminder I did not receive any witness list. They just said they would be calling their "Person Most Knowledgeable. The letter I sent them said I would be objecting to any witnesses because I was not provided with names and addresses.) They also provide a stipulation for me to sign and requested that I do it before March 22 and mail (they provided a pre-paid envelope) it to them or email it to them (they provided an email address). The stipulation does say that pre-trial deadlines will not re-set.