87Hockey

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About 87Hockey

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  1. Hello all. I opened an MBNA account in 2003. MBNA had an arbitration clause with NAF. It also has a survivability clause within the arbitration section. Bank of America subsequently bought MBNA. And then around 2009/2010, BoA removed the arbitration clause from its credit card agreements. I used the card after BoA removed the arbitration clause. Am I still able to use the original MBNA agreement to elect arbitration, due to the survivability clause? Attached is the 2004 agreement I was able to find from another poster here. Thanks! 2004-2005-MBNA-Agreement-with-NAF_with_survivability.pdf
  2. Thank you so much @fisthardcheese! I filed my reply. Now I wait for court date. Will report back!
  3. Revised reply below. Thoughts? I have cited case law already in my MTC (cited Federal Arbitration Act (FAA) 9 USC, Section, AT&T MOBILITY LLC v. VINCENT CONCEPCION ET UX, Jensen v Quik, and so I don't think I need to re-cite any statutes, but if citations are needed, I would cite either: The Illinois Supreme Court has instructed that when a trial court is "presented with a motion to stay litigation pending arbitration under section 3 of the Federal Arbitration Act (FAA), the court's inquiry is limited to whether an agreement to arbitrate exists and whether it encompasses the issue in dispute." Jensen v. Quik lnt'l, 213 III. 2d. 119,123-24, 820 N.E. 2d 462,465(2004) (emphasis omitted). If the answer to both of these questions is "yes," a stay is mandatory. Id; see also e.g., Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137,142 (7th Cir. 1978). ("If the agreement to arbitrate is valid the court has no further power or discretion to address the issues raised in the complaint."); Volkswagen of Am., Inc. v. Sud's of Peoria, Inc., 474 F.3d 966, 971 (7th Cir. 2007) (same). Here, this court is required to stay or dismiss this action until arbitration is complete. See 9 U.S.C. § 3. OR @debtzapper's suggestion of: The Appellate Court of Illinois has instructed that “A motion to compel raises a sole and narrow issue—whether there is an agreement between the parties to arbitrate the dispute at issue. Donaldson, 124 Ill. 2d at 444, 449. In making that determination, a three-pronged approach is used: (1) if it is clear that the dispute falls within the scope of the arbitration clause or agreement, the court must compel arbitration; (2) if it is clear that the dispute does not fall within the arbitration clause or agreement, the court must deny the motion to compel; and (3) if it is unclear or ambiguous whether the dispute falls within the scope of the arbitration clause, the matter should be referred to the arbitrator to decide arbitrability. Id. at 443-50.” Guarantee Trust Life Insurance Co. v. Platinum Supplemental Insurance, Inc., 2016 IL App (1st) 161612 26. Should I add additional case law, repeat the same, or keep it simple and include none? A sincere thanks to everyone providing wisdom and advice. I am ever grateful. DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration, and respectfully replies to Plaintiff’s Response to Defendant’s Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration. 1. On [DATE], Defendant filed its Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration. A copy of Defendant’s Motion is attached hereto as Exhibit “A”. 2. A copy of the Agreement containing the terms and conditions governing the use of the card (the “Agreement”) is attached to Defendant’s Motion. 3. The Agreement states as follows, “Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision and the code of procedures of the arbitration organization to which the claim is referred in effect at the time the claim is filed." (emphasis added) 4. Further, the Agreement states, “Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration." (emphasis added) 5. On [DATE], Defendant sent a letter via certified mail to Plaintiff's attorney, a copy of which is attached to Defendant’s Motion, electing arbitration and stating, “Pursuant to the American Express Cardmember Agreement, I hereby ELECT arbitration via JAMS for all claims with respect to the alleged debt under American Express account no. [REDACTED].” (emphasis added) 6. In Plaintiff’s Response to Defendant’s Motion, Plaintiff’s arguments (contained in paragraph No. 7, No. 8, and No. 10) state that Defendant is required to file a claim with JAMS or the American Arbitration Association if Defendant wishes to transfer this matter to arbitration. 7. Plaintiff's argument that Defendant did not yet file a claim should be disregarded, as there is no precedent, statute or contract that requires Defendant to file a claim. 8. Regardless of the unsupported argument brought by Plaintiff, Defendant is prepared to file a claim with JAMS immediately upon the granting of Defendant’s Motion and a stay of the court action. 9. As Plaintiff has failed to provide a defense to arbitration defined by the contract, the Defendant's Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration should be granted.
  4. Would it be best to attach the completed JAMS form to the reply as an exhibit or simply bring it along?
  5. Yes. @fisthardcheese - that points me in a great direction. Will revise accordingly. Much appreciated!
  6. Thanks for your guidance everyone! I've revised my reply and am pasting below for review and comment. Right now, I'm trying to decide if I want to: 1) not file with JAMS yet, and argue in my Reply that filing isn't necessary but instead election is enough. Then try to negotiate and if no wiggle room, file with JAMS after my MTC is granted. (-- I found plenty of case law in a very helpful post here, putting the burden on the plaintiff to file, but none of the case law was for my state.) 2) File with JAMS and in my Reply simply state that I have filed with JAMS and that my MTC should be granted as court does not have jurisdiction. Which do you think is the best strategy? With #1 in mind, I have re-drafted the reply and it's below. Thank you for any review comments. Much appreciated as my reply deadline is now 3 days away. DEFENDANT’S REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration, and respectfully replies to Plaintiff’s Response to Defendant’s Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration. 1. Plaintiff’s arguments (contained in paragraph No. 7, No. 8, and No. 10) state that Defendant is required to file a claim with JAMS or the American Arbitration Association if Defendant wishes to transfer this matter to arbitration. 2. Defendant has elected arbitration and there is no contractual requirement for Defendant to initiate arbitration. Defendant has merely exercised an option given to him by the Plaintiff in the Agreement containing the terms and conditions governing the use of the card (the “Agreement”), which clearly differentiates between election of arbitration and filing of a claim and states as follows, “Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision and the code of procedures of the arbitration organization to which the claim is referred in effect at the time the claim is filed." (emphasis added) 3. Further, the Agreement states, “Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration." (emphasis added) 4. On [DATE], Defendant sent a letter via certified mail to Plaintiff's attorney, a copy of which is attached to Defendant’s Motion, electing arbitration and stating, “Pursuant to the American Express Cardmember Agreement, I hereby ELECT arbitration via JAMS for all claims with respect to the alleged debt under American Express account no. [REDACTED].” (emphasis added) 5. By electing arbitration, Defendant has simply exercised his right to remove the matter from court and into an arbitration forum. The Agreement makes provisions for who may elect arbitration but does not make a provision as to which party is liable to file a claim initiating arbitration proceedings. It is reasonable to expect the party who initiated the original claim to also initiate arbitration proceedings. For the Defendant to initiate a claim in arbitration, against himself, on behalf of the Plaintiff is a conflict of interest and may prejudice his defenses in arbitration. Defendant has no further responsibility to the arbitration provision in the Agreement other than to elect or not elect. 6. As Plaintiff has failed to provide a defense to arbitration defined by the contract, the Defendant's Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration should be granted.
  7. So helpful everyone! Thank you! @Brotherskeeper I checked and my judge does not have any standing orders. So I suppose I will just drop off courtesy copies of everything to his chambers, as per the info that you provided. Thanks again for that helpful PDF. In terms of my sur-reply, I have begun drafting it, but the reality is I said pretty much everything in my MTC. I've pasted my sur-reply on top, and then my MTC and their reply below. Any review comments on my sur-reply would be much appreciated.Thanks everyone! DEFENDANT’S SUR-REPLY TO PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration, in response to Plaintiff’s Response to Defendant’s Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration, and states the following: 1. That on [DATE], Plaintiff filed its Complaint against Defendant. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A". 2. A copy of the Agreement containing the terms and conditions governing the use of the card are attached to Plaintiff's Complaint. 3. On [DATE], Defendant filed a Motion to Compel Private/Contractual Arbitration and Dismiss or in the Alternative, to Stay Proceedings Pending Arbitration. A copy of Defendant's Motion is attached hereto as Exhibit "B". 4. The Agreement states as follows, “Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision." (emphasis added) 5. Further, the Agreement states, “Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration." (emphasis added) 6. On August 23, 2017, Defendant sent a letter via certified mail to Plaintiff's attorney, a copy of which is attached to Defendant’s Motion, stating as follows, “Pursuant to the American Express Cardmember Agreement, I hereby ELECT arbitration via JAMS for all claims with respect to the alleged debt under American Express account no. [REDACTED].” (emphasis added) 7. The arbitration provision in the Agreement does not require the initiation of a claim filing, and further states that if arbitration is elected by any party with respect to a claim, neither party shall have the right to litigate that claim in court. 8. As a show of good faith, on [], Defendant filed a claim with JAMS. A copy of the filing is attached hereto as Exhibit “C”. 9. As Defendant as both elected arbitration and filed a claim with JAMS, this court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration provision. ==================================================================================== FOR REFERENCE ==================================================================================== MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION 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 [DATE], Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on [DATE], electing arbitration with JAMS and requesting dismissal of this case (see Exhibit “A”, attached). 3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Cardmember Agreement (see Exhibit “B”, attached). 4. The parties are bound by the Cardmember Agreement. The Cardmember Agreement’s arbitration provision states among other things: a. Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this arbitration provision. b. If arbitration is chosen by any party with respect to a claim, neither you nor we will have the right to litigate that claim in court or have a jury trial on that claim. c. This arbitration provision shall survive termination of your account; voluntary payment of the account balance in full by you; any legal proceeding by you or us to collect a debt owed by the other; any bankruptcy by you or us; and any sale by us of your account. e) This arbitration provision is made pursuant to transactions involving interstate commerce and shall be governed by the FAA. 5. The Federal Arbitration Act (FAA) 9 USC, Section 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. VINCENT CONCEPCION ET UX, 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 Illinois Supreme Court has instructed that when a trial court is "presented with a motion to stay litigation pending arbitration under section 3 of the FAA, the court's inquiry is limited to whether an agreement to arbitrate exists and whether it encompasses the issue in dispute." Jensen v. Quik lnt'l, 213 III. 2d. 119,123-24, 820 N.E. 2d 462,465(2004) (emphasis omitted). If the answer to both of these questions is "yes," a stay is mandatory. Id; see also e.g., Merit Ins. Co. v. Leatherby Ins. Co., 581 F.2d 137,142 (7th Cir. 1978). ("If the agreement to arbitrate is valid the court has no further power or discretion to address the issues raised in the complaint."); Volkswagen of Am., Inc. v. Sud's of Peoria, Inc., 474 F.3d 966, 971 (7th Cir. 2007) (same). Here, this court is required to stay or dismiss this action until arbitration is complete. See 9 U.S.C. § 3. 8. 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. ==================================================================================== PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION NOW COMES Plaintiff, [REDACTED], in response to a Motion to Compel Private Contractual Arbitration filed by the Defendant, [REDACTED], states the following: 1. That on [DATE], Plaintiff filed its Complaint against Defendant. A copy of Plaintiff's Complaint is attached hereto as Exhibit "A". 2. A copy of the Agreement containing the terms and conditions governing the use of the card are attached to Plaintiff's Complaint. 3. In Defendant's Motion, Defendant states that they wish to transfer to transfer this matter to arbitration. [SIC] 4. The Agreement containing the terms and conditions states as follows, "Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision and the code of procedures of the arbitration organization to which the claim is referred in effect at the time the claim is filed (code), except to the extent the code conflicts with this Agreement." (emphasis added) 5. Further, the Agreement states, "Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration." (emphasis added) 6. Pursuant to the Agreement, Plaintiff or Defendant may file a claim with either JAMS or the American Arbitration Association 7. Plaintiff is unaware of a claim filed with the Defendant with JAMS or the American Arbitration Association. 8. As there is no claim filed with either JAMS or the American Arbitration Association, this is the only pending claim between Plaintiff and Defendant. 9. Lastly, the Agreement states, "For a copy of the code, to file a claim or for other information, contact either: JAMS [ADDRESS] or AAA [ADDRESS]" 10. Pursuant to the Agreement, as Defendant as not filed a claim with JAMS or the American Arbitration Association, this is the only pending claim between the Parties and must proceed.
  8. Thanks everyone! I'm going to go ahead and prepare the JAMS filing and also the response to their response. A couple of questions: What exactly does this sentence mean for my deadline? "Courtesy copies to be dropped off 1 week before." For example, if my deadline for filing my response is 12/15, does this mean I have to file and send copies to their attorney on or before 12/8? If so, the plaintiff did not do this - they sent me copies and filed 1 day before their response deadline. What is the document title for my response to their response? Original Motion: MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION Their Response: PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION @fisthardcheese I found the appeal process you referred to in my agreement, so thanks for alerting me to it! That does make me feel somewhat better about the possibility of a settlement.
  9. Coincidentally, our mail was just checked, you were indeed correct - the response to my MTC came today. Postmarked 1 day before the response deadline (I thought one week courtesy copies meant that they needed to send a copy one week prior to the deadline?) The response was not an opposition and was very simple. Relevant sentence says "As Defendant has not filed a claim with JAMS or the American Arbitration Association, this is the only pending claim and must proceed." However, my CM agreement does not say that arbitration must be FILED, only that arbitration must be ELECTED. Specific wording from the arb provision (bolding is mine): a. Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this arbitration provision. b. If arbitration is chosen by any party with respect to a claim, neither you nor we will have the right to litigate that claim in court or have a jury trial on that claim. c. This arbitration provision shall surivive termination of your account; voluntary payment of the account balance in full by you; any legal proceeding by you or us to collect a debt owed by the other; any bankruptcy by you or us; and any sale by us of your account. So now I need to respond to their response. Should I go ahead and just file with JAMS and include a copy of the filing? Or do I simply create a response saying that the election is good enough (my MTC already had a copy of my election letters) and that filing isn't a requirement per the CM agreement? Thanks again!
  10. @WhoCares1000 thanks so much. I'm sure everyone going through this shares my same feelings - nervous about making the wrong move. I haven't discussed settlement with them at all, as I had read on here several times to wait until the MTC was granted, so my hope is that they will agree to some kind of payment plan before going into arb. I just want to avoid a judgment against me and would like the suit to be dismissed on the record. BK isn't an option for me unfortunately. Thanks again for your help!
  11. Apologies for one more question. If my MTC is granted, I will elect with JAMS. If the OC follows me into arb, and I lose, am I liable for the arb fees in IL? I searched and cannot find a concrete answer for states other than CA. My CM agreement does not say that the losing party will be responsible for fees. It merely mentions filing fees and the cap. Obviously my hope is that the OC will dismiss after the MTC is granted but it is AMEX and I have read here that they are quite ruthless and will follow into arb no matter the cost. Thank you!
  12. Thank you so much to both of you for taking the time to reply. I'm hoping that their lack of opposition means my MTC will be granted. Really appreciate your help and time!