Do I need to state that the court has no jurisdiction? I haven't done that. Also, I have another couple of points to ask about:
1. I can't find out if I need to file my answers first or not at all in Oklahoma. I know this is different in every state. In some, answering waives arbitration, in others you have to answer before you motion. The only thing I can find is in Title 12, section 2012 of Oklahoma statutes et seq. which talk about this. But I don't want to interpret the law without something to back me up.
2. In state law, I have to allege that they refused arbitration. Do I call and record the conversation? I found that in california, you don't even have to formally ask, you can just allege basically on the proof that you aren't in arbitration already. But is that true for Oklahoma?
3. Here is my Memorandum so far, does it need anything else?
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO STAY PROCEEDINGS AND TO COMPEL PRIVATE/ CONTRACTUAL ARBITRATION
The undersigned respectfully requests that this Court compel arbitration per the agreement through JAMS under its Commercial Arbitration Rules now in effect. This is appropriate as Oklahoma has established a policy of favoring arbitration, the parties are both subject to a valid arbitration agreement, and the arbitration clause contained in the Agreement is clear and unambiguous. As such, this Court should compel arbitration.
I. Statement of the Law and Facts
On January 2, 2018, the Defendant received a copy of the Plaintiff's Summons and Petition for Indebtedness.
Plaintiff’s Affidavit of Indebtedness alleges that the defendant opened a WebBank account on 2013-02-16, which was then sold to Dell Financial Services L.L.C. on or about 2016-11-28.
A. Credit Agreement and Arbitration Clause
The Defendant found and retrieved a copy of the original Credit Agreement (Exhibit A, hereinafter “Agreement”) from the Consumer Financial Protection Bureau’s (“Bureau”) website, which pertains and belongs to the WebBank Account in question. The Bureau maintains a database of credit card agreements from hundreds of card issuers. This is accomplished through the application of Regulation Z.
Regulation Z (12 CFR 1026) as issued by the Bureau to implement the Federal Truth in Lending Act –which is contained in title I of the Consumer Credit Protection Act, as amended 15 U.S.C. 1601 et seq.—requires creditors to submit all Credit Agreements to the Bureau and onto their websites, publicly available.
The original Agreement includes an arbitration clause. The Arbitration Clause is valid and enforceable and the Agreement is clear and unambiguous. The Agreement states (emphasis added):
1. “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.”
The Plaintiff claims to be the assign of the account and is, therefore, subject to this Agreement.
2. “Except as expressly provided herein, any claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement (“Claim”) shall be decided, upon the election of you or us, by binding arbitration.”
Defendant elects arbitration.
3. “The party initially requesting arbitration shall select either the American Arbitration Association (“AAA”) or JAMS (originally, Judicial Arbitration and Mediation Services) as the arbitration administrator.”
Defendant selects JAMS.
4. “This arbitration provision shall survive termination of your Account as well as the repayment of all amounts you owe under the Agreement. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced…”
B. Applicable Law
1. Oklahoma Revised Uniform Arbitration Act
Oklahoma Statute title 12, §1856 states: "[A]n application for judicial relief under the Uniform Arbitration Act must be made by application and motion to the court and heard in the manner provided by law or rule of court for making and hearing motions."
The Defendant hereby applies and motions the court pursuant to this statute.
Oklahoma Statute title 12, § 1857(A) states: “An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.”
This section is a clear expression of Oklahoma's policy favoring arbitration agreements. The limited resources of the court should not be wasted upon a suit wherein exists a contract or agreement for which there is a valid and enforceable arbitration clause. See, Voss v. City of Oklahoma City, 1980 OK 148, 618 P.2d 925 and/or Rollings v. Thermodyne Indust., Inc., 1996 OK 6, 910 P.2d 1030.
Oklahoma Statute title 12, §1858 (A) states: “On application and motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement . . . If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. The court may also tax costs against the party opposing the motion if the court concludes the opposition was not brought in good faith.
The Defendant, having applied and motioned, and showing said agreement (attached below as Exhibit A), so alleges the Plaintiff’s refusal to arbitrate pursuant to the agreement.
Attached below and incorporated by reference is an Affidavit supporting the facts of this motion. (“Affidavit of Defendant”)
2. Federal Arbitration Act
The Federal Arbitration Act (the “FAA” or the “Act”) provides that written arbitration agreements are “valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2 (1999). The main purpose of the Arbitration Act is “to overcome courts’ refusals to enforce agreements to arbitrate.” Allied-Bruce, 513 U.S. at 270. In passing the FAA, Congress was “motivated first and foremost by a desire to change this [trend],… to enforce [arbitration] agreements into which parties had entered, and to place such agreements ‘upon the same footing as other contracts.’” Id. At 270-71 (citations omitted) (second alteration in original).
To fulfill the purpose of enforcing arbitration clauses more uniformly throughout the country, Congress established a broad principal of enforceability within the provisions of the FAA. Doctor’s Assoc. V. Casarotto, 517 U.S. 681, 685 (quoting Southland Corp. v. Keating, 465 U.S. 1, 11 (1984)). The Supreme Court has determined that “Congress would not have wanted state and federal courts to reach different outcomes about the validity of arbitration in similar cases.” Allied-Bruce, 513 U.S. at 72, citing Southland Corp., 465 U.S. at 15-16. Accordingly, the “the Court also concluded that the Federal Arbitration Act preempts state law; and it held that state courts cannot apply state statutes that invalidate arbitration agreements.” Id. Hence, the outcome should be the same in state and federal court, applying state or federal statutes.
Defendant respectfully requests that this Court compel the arbitration of the dispute between Plaintiff and Defendant. The parties are subject to a valid, clear and unambiguous arbitration agreement requiring arbitration of claims. A dispute has now arisen concerning Defendants’ alleged debt to the Plaintiff. As such, the arbitration provision in the agreement between the parties should be given its full force and effect and this case should proceed through final and binding arbitration before JAMS, formerly Judicial Arbitration and Mediation Services. Adequate time should be provided to Plaintiffs to file an appropriate Answer.
This lawsuit should be stayed pending binding arbitration. Oklahoma law (as articulated by both the Oklahoma Legislature and the Oklahoma Supreme Court), as well as the Federal Arbitration Act, uniformly hold that the arbitrability of disputes agreed upon in a written Contract or Agreement must be enforced.
Moreover, Oklahoma law consistently enforces the clear and unambiguous language of contracts, particularly broad arbitration provisions such as that presented here. In this case, the clear and unambiguous contractual provision requires arbitration of:
“[A]ny claim, dispute or controversy (whether based upon contract, tort, intentional or otherwise, constitution, statute, common law, or equity and whether pre-existing, present or future including initial claims, counter-claims, cross-claims and third-party claims), arising from or relating to you applying for, obtaining, or using this Account, this Agreement (including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement), or the relationships which result from this Agreement.”
Pursuant to both the Oklahoma Revised Uniform Arbitration Act (12 Okla. Stat. §1851 et seq.) and the Federal Arbitration Act, this dispute should immediately be submitted to binding arbitration and this litigation stayed in the interim.
DATED this _____day of January, 2018. ________________________