calilotus

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About calilotus

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  1. Hi all, 1. Who is the named plaintiff in the suit? American Express Centurion Bank, a Utah State Chartered Bank2. What is the name of the law firm representing the Plaintiff? Michael & Associates, PC3. How much are you being sued for? 9k4. Who is the original creditor? Amex5. How do you know you are being sued? Summons filed6. How were you served? Substituted service but no mailed copy sent afterwards.7. What state do you live in? California8. When is the last time you paid on this account? September 20169. How long do you have to respond to the suit? Served on July 8th, notice says I have 30 calendar days but substituted service adds on 10 more days so August 17th.10. What documents, if any, did they send with the summons? Copy of statement dated April 201711. Did they also send discovery? (Requests for Production of Documents, Requests for Admissions, Interrogatories) No. 6/23/17: AMEX filed lawsuit for $9000; complaint for damages 1) book account, account stated 2) quantum merit-reasonable value. Attached: one exhibit showing copy of billing statement 8/15/17: I filed Motion to Compel Arbitration and Dismiss or in the Alternative, Stay Proceedings with a proposed order for Judge either ordering case dismissal OR to Stay the Proceedings and Ordering the Defendant to initiate JAMS within 30 days; an Answer to Summons; a Declaration in support of Motion. Attached exhibits: 1) copy of certified letter to amex electing arb 2) copy of certified letter to atty office electing arb 3) copy of cardmember agreement showing I can choose between AAA or JAMS 8/24/17: Atty filed Opposition to MTC Arbitration and Dismiss; Memorandum of points and authorities; proposed order Here is where it gets confusing: they start off the Points and Authorities saying they "concede that the cardmember agreement attached to the operative complaint in this action is a valid arbitration clause..." and quotes from it, supposedly in Exhibit A of the Complaint, p.3........the problem is that the original Complaint had only one attached exhibit: a copy of billing statement from April 2017, nothing else. There were no attached exhibits in the Opposition - so what are they talking about?? This quote is from some other cardmember agreement, not the one I used and attached as exhibit in my Motion, especially because their quote says "Claims will be referred to either NAF or AAA" whereas my copy clearly states " Claims will be referred to either JAMS or AAA" hence me electing JAMS. I should add that my copy of the card member agreement was what the OC sent me in response to my debt validation letter. Based on this quote from this nonexistent exhibit, they are saying that because I am asking for arbitration after they'd elected to go to court, I am the one who should be responsible for initiating proceedings and therefore they are requesting a denial "to the extent that it fails to indicate who must initiate arbitration." They also want a status hearing in the next 120 days so that the case is not stayed indefinitely. Next they opposed the motion to dismiss the action saying defendant is mistaken in the assertion that the Court lacks subject matter jurisdiction because Court has jurisdiction over collection cases such as this one. The fact that there is arbitration clause as an "alternative forum" doesn't change the fact. Moreover, the card member agreement makes it clear that whichever party wishes to proceed with arbitration must take the necessary steps to initiate. The Court should retain this case to make sure it is resolved within reasonable period of time and that a dismal would unfit prejudice plaintiff. Their conclusion is a request to deny the MTC Arbitration and Dismiss. Alternatively, to the extent the MTC Arbitration is granted, Plaintiff is requesting that the Defendant be ordered to initiate arbitration and that a status hearing be scheduled within 120 days. That's the end. And attached is a proposed order compelling parties to arbitration and staying action. I have no problem initiating but I was waiting for the court order (as indicated in my proposed order). Hearing is set on Sep. 25th 2017. Any advice from you fine people on how to respond would be greatly appreciated!!
  2. Hi all, I'm a new. I am about to file MTC arb with JAMS (already sent Election letter to Amex's lawyer - Michael & Associates), but need some help with the legal lingo - I believe the structure is supposed to be divided into: Notice of Motion; Memorandum or Points and Authorities; Conclusion. I got the following from Linda7's posts mostly, adjusted it to Amex's card agreement. If a lawyer here like @calawyer could please help me edit the draft I have so far to make sure it complies with CA requirements, I would GREATLY appreciate it!!! Also I read in another post I don't need the Verification by Affidavit but that just a Declarations will do, is that true? What else do I need? THANK YOU! MOTION TO DISMISS OR IN THE ALTERNATIVE COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND STAY PROCEEDINGS NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following: 1. That on or about ________, Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on _________, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached). 3. Defendant respectfully moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: IF ARBITRATION IS CHOSEN BY ANY PARTY, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OF HAVE A JURY TRIAL ON THAT CLAIM. YOU AND WE MAY ELECT TO RESOLVE ANY CLAIM BY INDIVIDUAL ARBITRATION. CLAIMS ARE DECIDED BY A NEUTRAL ARBITRATOR. CLAIMS WILL BE REFERRED TO EITHER JAMS OR AAA AS SELECTED BY THE PARTY ELECTING ARBITRATION. YOU OR WE MAY OTHERWISE ELECT TO ARBITRATE ANY CLAIM AT ANY TIME UNLESS IT HAS BEEN FILED IN COURT AND TRIAL HAS BEGUN OR FINAL JUDGEMENT HAS BEEN ENTERED. THE ARBITRATION PROVISION IS GOVERNED BY THE FAA. THIS SECTION WILL SURVIVE TERMINATION OF YOUR ACCOUNT, VOLUNTARY PAYMENT OF YOUR ACCOUNT BALANCE, ANY LEGAL PROCEEDINGS TO COLLECT A DEBT, ANY BANKRUPTCY AND ANY SALE OF YOUR ACCOUNT (IN THE CASE OF A SALE, ITS TERMS WILL APPLY TO THE BUYER OF YOUR ACCOUNT). YOU WILL BE RESPONSIBLE FOR PAYING YOUR SHARE OF ANY ARBITRATION FEES (INCLUDING FILING, ADMINISTRATIVE, HEARING OR OTHER FEES), BUT ONLY UP TO THE AMOUNT OF THE FILING FEES YOU HAVE INCURRED IF YOU HAD BROUGHT A CLAIM IN COURT. WE WILL BE RESPONSIBLE FOR ANY ADDITIONAL ARBITRATION FEES. 5. The Federal Arbitration Act (FAA) 9 U.S. Code §3 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”. 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 is readily 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 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 favoring arbitration,” 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) .” 7. The Defendant elects arbitration to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration 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 contractual arbitration. Respectfully submitted this day ________________, 2017 --------