Xerxes - this is what I have so far:
MEMORANDUM IN REPLY TO PLAINTIFF’S MEMORANDUM IN OPPOSITION TO COURT’S ORDER TO COMPEL ARBITRATION
Comes now the Defendant, Pro Se, hereby respectfully objects to Plaintiff’s Opposition to Court ordered Arbitration. In support of its objection, Defendant will show the Honorable Court as follows:
1. Defendant, Pro Se, was served by Midland Funding/Scott & Associates on or about July 27th, 2017.
2. Defendant, Pro Se, sent Arbitration Election Notice with credit card agreement to Scott & Associates, a lawyer for Plaintiff on or about August 5, 2017.
3. Defendant, Pro Se, filed with Honorable Court, Answer with Arbitration Election on or about August 10, 2017, and CCMR Scott & Associates with Answer and credit card agreement.
4. Defendant, Pro Se, filed with Honorable Court, Motion to Compel Arbitration on or about August 15, 2017, and CCMR Scott & Associates with Motion and credit card agreement. The motion hearing was granted by Honorable Court on August 22, 2017, for September 27, 2017.
5. Plaintiff filed for a continuance on September 21, 2017, granted by the Honorable Court on September 25, 2017, and then Plaintiff filed an opposition to Defendant’s Motion to Compel Arbitration before the motion hearing set for November 29, 2017, to hear Plaintiff’s request.
6. November 29, 2017, Honorable “” abated the case and Plaintiff and Defendant were ordered to arbitration.
7. On or about December 15, 2017, Defendant filed with JAMS and Scott & Associates were notified of intent and given “Jams Consumer Minimum Standards” on December 22, 2017.
8. January 12, 2018, Defendant and Plaintiff received, “Notice of Intent to Initiate Arbitration” via email from JAMS. On January 29, 2018, Plaintiff paid the initial filing fee of $1200.00 and on February 7, 2018, Plaintiff and Defendant received the strike list for Arbitrators. Plaintiff and Defendant sent in their choices for the Arbitrator and received an email from JAMS with the Appointment of Arbitrator and invoice for the Arbitrator initial retainer fee of $5,000.00 on February 13, 2018.
9. March 6, 2018, Plaintiff and Defendant received an email from JAMS stating they were missing the Arbitrator’s initial retainer fee of $5,000.00. An amount the Defendant has not paid.
10. March 13, 2018, Plaintiff filed a motion to “Reconsider Court’s Order to Compel Arbitration” and “Notice of Hearing” which the Honorable Court set for April 4, 2018.
BRIEF AND MEMORANDUM OF LAW
1. Plaintiff admits that the submitted Dell/Webank card agreement (Exhibit A) contains an arbitration clause. Defendant agrees.
2. Defendant objects with Plaintiff’s claim, “that any matter brought in Small Claims court is not subject to arbitration”. The Plaintiff does not dispute the validity of the arbitration clause.
“U.S. Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that if there is an arbitration clause in the contract, that clause must be honored.”
The credit card agreement clearly states “any claim relating to your account (Defendant’s) may be resolved by BINDING INDIVIUDUAL ARBITRATION and further states that any claim or dispute upon election by either party to be resolved in binding arbitration. Plaintiff misinterprets the referenced sentence in the Cardmember Agreement. As provided in the Agreement:
"We agree not to invoke our right to arbitrate any individual Claim you bring in small claims court or an equivalent court so long as the Claim is pending only in the court."
That in no say excludes arbitration from lawsuits filed in small claims. According to the Agreement, "we" is defined (in part) as "WebBank and Dell Financial Services, L.L.C., their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors, assigns and any purchaser of the Account or any receivables arising from the use the Account..."
The Agreement defines "you" as "you and any person authorized by you to use your Account."
Correctly interpreted, the Agreement provides that WebBank, Dell Financial Services, L.L.C. and any purchaser of the Account ("we") would not invoke the right to arbitrate any claims brought by _________ (my name) in small claims. It does not state that small claims lawsuits brought by the original creditor or its assignors are excluded from arbitration and cannot be arbitrated.
3. Defendant objects to Plaintiff’s claim that there is no right to arbitrate. Defendant also objects to the claim that Midland Funding does not have to follow the credit card agreement arbitration notice, stating the account was purchased by Midland Funding and the rules of the credit card arbitration agreement do not apply to them, Midland Funding.
“For the purposes of this arbitration provision, the terms “we” and “us” shall mean WebBank and Dell Financial Services L.L.C., their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors, assigns and any purchaser of the Account or any receivables arising from the use of the Account, and each of their respective employees, directors and representatives.
In addition, for the purposes of this arbitration provision, “we” and “us” shall mean any third party providing any products or services to you or us in connection with your Account (including but not limited to any credit bureau, debt collector or vendor, Participating Merchant, and including their parents, direct and indirect subsidiaries, affiliates, licensees, predecessors, successors and assigns, and each of their respective employees, directors and representatives).
4. Defendant objects to Midland’s claim of lack of cost efficiency to arbitrate. 9 U.S.C. § 2 of the Federal Arbitration Act states "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 a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."
It makes no exclusion for an amount of a claim.
But "the `risk' that [a claimant] will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement." In re Poly-America, L.P., 262 S.W.3d 337, 356 (Tex.2008).
It is not sufficient for the party to show that it is at risk of incurring excessive fees and costs. Venture Cotton Cooperative v. Freeman, 11-11-00093-CV, 494 S.W.3d 186, 192, 2015 WL 1967251 (Tex.App. — Eastland Apr. 30, 2015, no pet. h.).
5. Plaintiff states they were not provided a legible copy of the card agreement. Plaintiff admits to sending Defendant a copy of the Card Agreement that contains the arbitration clause, and therefore it would be reasonable to assume Plaintiff has a legible copy of that agreement. Regardless, Plaintiff has already admitted that the card agreement contains a valid arbitration clause, rendering any question of legibility moot.
6. Defendant objects that the claim cannot be arbitrated. Defendant filed for arbitration well within the timeframe allowed by the Honorable court after being served on July 27, 2017. Credit card further states: “You acknowledge that if a claim arises you may be required to resolve the claim through arbitration and are giving up your rights to litigate that claim in court or before a jury.”
7. Defendant objects with Midland’s argument that, “Texas debt collection cases are not appropriate for arbitration process due to the small amount in controversy.” However, Plaintiff failed to provide either by statute or court precedent how it’s claim is “well-established”. “IN RE MERRILL LYNCH & CO., INC. AND MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED (other) when an issue is pending in both arbitration and litigation, Texas recognizes that the Federal Arbitration Act generally requires the arbitration to first proceed.”
“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 for the revocation of any contract”.
CONCLUSION AND PRAYER
Based on the above arguments, Defendant, Pro Se, requests the Honorable Court to DENY Midland’s Opposition to Defendant’s Motion to Compel Arbitration.
WHEREFORE, Defendant moves this Honorable Court to DENY plaintiff’s Motion to Reconsider Court’s Order to Compel Arbitration Demand and Grant Defendant’s court order arbitration set forth on November 29, 2017.