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Impress last won the day on July 3 2019

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  1. *nods* I know. But my concern is a judge who might view Justice Court as small claims court because they are handled there. I want to make sure I can provide a convincing argument and/or have case law to argue against the small claims carve out.
  2. Hola, So I was doing a random search to see if any new lawsuits were pending against me and what do I find but Midland is suing me for an old Citi card (2K+). It's within SOL so I have to fight this. My first inclination is arbitration but there is that pesky carve out. I knew this suit was coming, so I've been trying to find arguments and case law I can use to back up my MTC should the other attorney actually object because of the carve out. So far I've had no luck finding anything. Any ideas, arguments, cases, etc, you guys can provide I would appreciate the help. I should also add that Texas no longer has an actual small claims court, and this was filed in Justice Court, but I know that distinction is reliant upon the judge. So that's why I'm searching for argument and such I can use. The attorney's are Scott & Associates. Does anyone have any dealings with them? Thanks for all advice & assistance. PS - As of today I haven't actually been served, it's only been filed. I'm trying to get prepared now.
  3. Hmmm. I see your point. The funny thing is, if Texas still had small claims courts, the JDB's wouldn't be able to file there as assignees couldn't file in small claims court. I guess it's up to the judge how they want to interpret it. Assuming the other side brings up the clause of course.
  4. A recent notice of intent to sue (on a citi card) got me wondering about this carve out again. I wonder if the nature of the debt itself can be used as an argument against the carve out. In Texas assignees, such as PRA, have to file a debt claim case not a small claim case. Though the amounts caps are the same, the Rules of Civil Procedure separate the two and there is an additional rule that applies to debt claim cases that doesn't apply to small claim cases.
  5. Is this for a credit card? You'll find several posts on here saying that Synchrony has a good arbitration clause. You should find your credit card agreement and see. You will need to file your general denial. If you do decided to go the arb route, you might include a line in you denial stating an affirmative defense. Some say you don't need to in Texas, I've also read in my research you do. I figure hedge your bets and include it. Also, go and read @fisthardcheese's post on Arb here.
  6. I just want to make sure, when you send the form, do you only send the form or the other stuff as well? For example, JAMS asks for credit card agreement and court order (if one) when filing. If the JDB/OC has those already, I shouldn't send again right?
  7. I've been wondering something since court yesterday. The attorney mentioned they would not consent to JAMS, but given Midland's history of stiffing AAA, why would they agree to use AAA and not JAMS? Any thoughts? It just struck me as odd. Also, she hasn't filed yet, but I'm curious, does anyone have a preference to JAMS or AAA, and why?
  8. As of 2013, (thanks to HB 79/2011), Texas no longer has a small claims court. All small claims are done in Justice Court. Since other matters, such as evictions and traffic case can be and are heard in Justice Court, I think it can be argued that the small claims carve out does not apply when seeking arbitration.
  9. Ok, so my Mom had her court hearing today. The judge wanted to schedule mediation because it didn't cost anything. She almost agreed, but looked to me and I shook my head no. The judge saw and allowed me to come up and speak for her. Judge was under the assumption we would have to pay a few thousand dollars for a cheap arbitration, I explained that JAMS (which we are electing) limits the amount a consumer pays. He was surprised. I also mentioned the contract states they will pay a majority of the fees. The lawyer made a comment about that's not how it works in commercial arbitration. I chose not to remind him this is consumer arbitration. The lawyer then argued that Midland would not consent to JAMS, and the judge assumed I would have to be stuck with AAA. But I showed the judge the part that lists JAMS as a choice and he interpreted it the same as I did, that I have an option for either AAA or JAMS or a mutually agreed upon third party. Judge agreed we have the right to arbitrate, and lawyer asked for a stay until claim is filed. So now off to file for arbitration. My question is, based on the cost provision below, can/how does she ask that Midland pay her portion of the fee? 8. Location and Costs of Arbitration: Any arbitration hearing that you attend must take place at a location reasonably convenient to you. We will pay any and all fees of the Administrator and/or the arbitrator if applicable law requires us to, if you prevail in the arbitration or if we must bear such fees in order for this Arbitration Provision to be enforced. If you demand an arbitration, we will pay your reasonable attorneys’ and experts’ fees if you prevail or if we must bear such fees in order for this Arbitration Provision to be enforced. Also, we will bear any fees if applicable law requires us to.
  10. Ok, so my mom has a hearing on her MTC-Arb and I want to prepare her the best I can. So no admitting to debt. And basically she just needs to stick to her guns and remind the court if they are claiming they are owed this debt, then they are bound by the CC agreement which has an arb clause. We are also going to have the Jams paperwork ready to go in case lawyer claims she is bluffing. Any other tips you guys can think of? I've been reading and rereading @fisthardcheese's thread on arb, and printed a copy for her to read, but my mom is nervous and I want to put her ease as much as possible so any additional tips would be helpful. Also, attorney is Scott & Assoc. Anyone have dealings with them?
  11. If electing arbitration shouldn't an affirmative defense be included in the denial? Something like, II. AFFIRMATIVE DEFENSE Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter.
  12. Yes on your response. Your denial will be first then second will be something like. II. AFFIRMATIVE DEFENSE Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter.
  13. So went to court today. Different attorney for plaintiff today. Is that normal? She began to present what she had (affidavit, bill of sale, etc.). I objected, reminding the court that they had not gotten discovery to me yet. After a bit of confusion, judge set new trial date for Feb and said we had to have discovery in by January.
  14. Ok, so I have court tomorrow (Dec.9), and I want to make sure I'm prepared for different possibilities. For example, if the other party doesn't show up, I know to ask for dismissal with prejudice (though I'm not sure how to do so exactly). I am still waiting for PRA to answer discovery. I know they have 30 days to get to me by law. I emailed them on Nov 19, so it's under 30 days.* Does anyone know if PRA might surprise me with it in court? If so, I can and should ask for a continuance, right? Or if they don't have discovery for me in court what are my options? I don't know if I can ask for sanctions since it's been under 30 days. I was wondering though if I can argue that even though it's been less than 30 days since the order was signed, PRA has had a copy of the discovery since Oct 21/22 since a copy was given to their local lawyer. Any other possibilities I should be aware of? *I don't know if it makes a difference, but the order was signed on Nov11 the court clerk just didn't upload until the 18 so I wasn't able to notify PRA until the 19.
  15. Ok, so judge has signed order granting discovery. Signed on the 11th but not uploaded till today. I know I have to let the other side know, but was wondering if there was any special way I should word it? Or will a simple, judge granted, here's order and another copy of discovery requests, do? Also, should I remind them of up coming trial date and request they have it to me by then or say nothing and see if they produce? Oh, court clerk uploaded copy of my description of events (them having 15 days and failing to object) along with order granting (same document). Do I need to include that with the order granting for the other side?