Docs electronically filed 3/2/21
1) Summons (30 days after service to submit answer) 2) Complaint 3) Affidavit of Account (Velocity compliance officer certifying their documents show I owe this debt)
Prosper balance: $7839.42
Court of Common Pleas South Carolina
I am moderately familiar with court documents and feel I can create and file required documents. I have reviewed this thread and made notes about my case.
I plan to file 3 documents:
1) Answer - including "In your answer, after you deny all allegations in the complaint, you should create a new section with the following title: “Affirmative Defense”. Under this heading you will state “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”."
2) Motion to dismiss/Compel private arbitration with JAMS or AAA
3) Affidavit of Fact - "an affidavit that testifies that the included Card Agreement you are submitting is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise"."
I have a few questions which probably mean I am overthinking this entire process.
1. Should I use JAMS or AAA and why? Time is not an issue for me. I have plenty of time but also able to settle for about $3000 out of pocket. I want to make sure that at the completion of arbitration, I am not hit with the arbitration fees.
2. Does anyone here have experience dealing with this in SC?
3. What should be an expected settlement?
Prosper 2018 Promissory Note re: Arbitration
18. Arbitration. RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION
CAREFULLY, AND UNDERSTAND THAT IT LIMITS MY RIGHTS IN THE EVENT
OF A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE THE
RIGHT TO REJECT THIS PROVISION, AS PROVIDED IN PARAGRAPH (i) BELOW.
(a) In this Resolution of Disputes provision:
(i) “I,” “me” and “my” mean the promisor under this Note, as well as any person claiming
through such promisor;
(ii) “You” and “your” mean WebBank, any person servicing this Note for WebBank, any
subsequent holders of this Note or any interest in this Note, any person servicing this Note for
such subsequent holder of this note, and each of their respective parents, subsidiaries, affiliates,
predecessors, successors, and assigns, as well as the officers, directors, and employees of each of
(iii) “Claim” means any dispute, claim, or controversy (whether based on contract, tort,
intentional tort, constitution, statute, ordinance, common law, or equity, whether pre-existing,
present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief)
arising from or relating to this Note or the relationship between you and me (including claims
arising prior to or after the date of the Note, and claims that are currently the subject of purported
class action litigation in which I am not a member of a certified class), and includes claims that
are brought as counterclaims, cross claims, third party claims or otherwise, as well as disputes
about the validity or enforceability of this Note or the validity or enforceability of this Section.
(b) Any Claim shall be resolved, upon the election of either you or me, by binding arbitration
administered by the American Arbitration Association or JAMS, under the applicable arbitration
rules of the administrator in effect at the time a Claim is filed (“Rules”). Any arbitration under
this arbitration agreement will take place on an individual basis; class arbitrations and
class actions are not permitted. If I file a claim, I may choose the administrator; if you file a
claim, you may choose the administrator, but you agree to change to the other permitted
administrator at my request (assuming that the other administrator is available). I can obtain the
Rules and other information about initiating arbitration by contacting the American Arbitration
Association at 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org; or by
contacting JAMS at 1920 Main Street, Suite 300, Irvine, CA 92614, (949) 224-1810,
www.jamsadr.com. Your address for serving any arbitration demand or claim is WebBank, c/o
Prosper Marketplace, Inc., 221 Main Street, Third Floor, San Francisco, CA 94105, Attention:
(c) Claims will be arbitrated by a single, neutral arbitrator, who shall be a retired judge or a
lawyer with at least ten years’ experience. You agree not to invoke your right to elect arbitration
of an individual Claim filed by me in a small claims or similar court (if any), so long as the
Claim is pending on an individual basis only in such court.
(d) You will pay all filing and administration fees charged by the administrator and arbitrator
fees up to $1,000, and you will consider my request to pay any additional arbitration costs. If an
arbitrator issues an award in your favor, I will not be required to reimburse you for any fees you
have previously paid to the administrator or for which you are responsible. If I receive an award
from the arbitrator, you will reimburse me for any fees paid by me to the administrator or
arbitrator. Each party shall bear its own attorney’s, expert’s and witness fees, which shall not be
considered costs of arbitration; however, if a statute gives me the right to recover these fees, or
fees paid to the administrator or arbitrator, then these statutory rights will apply in arbitration.
(e) Any in-person arbitration hearing will be held in the city with the federal district court closest
to my residence, or in such other location as you and we may mutually agree. The arbitrator shall
apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. § 1-16,
and, if requested by either party, provide written reasoned findings of fact and conclusions of
law. The arbitrator shall have the power to award any relief authorized under applicable law.
Any appropriate court may enter judgment upon the arbitrator’s award. The arbitrator’s decision
will be final and binding except that: (1) any party may exercise any appeal right under the FAA;
and (2) any party may appeal any award relating to a claim for more than $100,000 to a three
I will create all 3 documents and post them here before submitting to the courts next week.
Thank you all for your help!!!