ginaTN

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About ginaTN

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  1. Just got back from court and all went very well. Linda7's "Strategy and Steps of Arbitration" are spot on. I was granted a stay pending arbitration, which is standard, with no objections from the attorney, and I even gained a thank you from the Judge for the order I had prepared in advance, per Linda's instructions. The attorney was surprised but accepted the order and signed off on it. Nov 13th is the next court date. I'm no longer distressed about things on my end. I've already followed through with every step, except the complaint, which is in rough draft form. (My JAMS demands were accepted/initiated with a response from JAMS within 11 days of submission.) This site rocks! Linda7 knows her stuff. I'd recommend her strategy and steps to anyone selecting arbitration. I consider my day in court a minor victory for myself (because I had zero knowledge) with major Thanks Yous due this site and Linda7. The waiting game begins
  2. Linda's examples helped me to gain a foothold on legal procedure and arbitration when I had zero knowledge on the subjects. I just sent my JAMS demands out on June 15th, and I've already received a response. For a complete noob, I think that's proof positive that I did something right--and it's due to this thread. The case is still up in the air but at least I don't feel like I'm completely in the dark about things anymore Thank you, Linda7.
  3. One last question: On the notice of arbitration election letter, I noticed that the example provided for me had no account #, so I did not include one. The attorney provided one on his dun letter worded as: "FWD File No. XXXXXthe alleged account numberXXXX." Do I omit the alleged account number from the doc OR include it, perhaps with the wording used above "Your FWD File No. xxxxx" for proper reference?? I just don't want them using an absent number as a doorway for further abuse.
  4. I know I'm supposed to ask the court clerk if I need a hearing for a decision on a MTC. Will call her in the a.m. I believe there are 5 docs including a copy of the cardmember agreement and the MTC. I believe I need to include copies of my receipts of the registered mail? I hope I haven't left something out. Do I need to state that I am electing arb with JAMS on the Verification by Affidavit? I believe the Sworn Affidavit is the same thing as a certificate of service?? All I've found online for my state is worded as certificate of service. Shouldn't I change that, accordingly? Or does it matter? Thanks ladies and gents.
  5. (attached with MTC) ORDER GRANTING DEFENDANT’S MOTION TO COMPEL PRIVATE / CONTRACTUAL ARBITRATION WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, it is hereby ORDERED and ADJUDGED that Defendant’s motion shall be GRANTED. It is further ordered: ___That this matter is Dismissed without prejudice ___To Stay proceedings pending Private/Contractual arbitration SO ORDERED this _______ day of _______________, 2012 ______________________________________________ JUDGE
  6. (attached with MTC) SWORN AFFIDAVIT The attached agreement (see Exhibit is a true, unaltered copy of the agreement that governs the alleged account. Pursuant to 28 U.S.C. § 1746(2), I, XXXname, hereby declare under penalty of perjury, that the foregoing is true and correct, to the best of my knowledge, information and belief. _______________________________________ XXXNAMEADDY I, _________________________________, the undersigned Notary, hereby certify that XXXNAME personally known to me to be the affiant in the foregoing affidavit, personally appeared before me this day and having been by me duly sworn, deposes and says that the facts set forth in the above affidavit are true and correct. Witness my hand and official seal this the _________ day of __________, _________. ____________________________________ Notary Public My Commission expires: ____ / ____ / ________. I CERTIFY that I mailed a copy of this SWORN AFFIDAVIT to:ATTNYNAMEADDY By:XXXname, Defendant Pro se Date: __________________, 2012
  7. (TN general sessions is very informal but I could find no info about filing an answer first before filing a MTC, so I'm not filing an answer first but will include it with my MTC, as I'm doing all of this basically same day.) 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 January, 2012, Plaintiff filed its Complaint against Defendant. 2. Defendant sent a letter via certified mail to Plaintiff's attorney on June 14, 2011, 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 Credit Card Agreement (see Exhibit B, attached). 4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things: (a) ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION, ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION LAW SUIT OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ( EITHER YOU OR WE MAY, WITHOUT THE OTHER’S CONSENT, ELECT MANDATORY, BINDING ARBITRATION FOR ANY CLAIM, DISPUTE, OR CONTROVERSY BETWEEN YOU AND US (CALLED “CLAIMS”.) © ALL CLAIMS ARE SUBJECT TO ARBITRATION, NO MATTER WHAT LEGAL THEORY THEY ARE BASED ON OR WHAT REMEDY (DAMAGES, OR INJUNCTIVE OR DECLARATORY RELIEF) THEY SEEK. (d) AT ANY TIME YOU OR WE MAY ASK AN APPROPRIATE COURT TO COMPEL ARBITRATION OF CLAIMS, OR TO STAY THE LITIGATION OF CLAIMS PENDING ARBITRATION, EVEN IF SUCH CLAIMS ARE PART OF A LAWSUIT, UNLESS A TRIAL HAS BEGUN OR A FINAL JUDGEMENT HAS BEEN ENTERED. (e) THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT. 5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 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”. 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) ." 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 . . . " 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 ________________, 2012 XXXXname, Defendant Pro se XXXXADDY VERIFICATION BY AFFIDAVIT Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief. _______________________________________ XXXSIGNATURE, Defendant Pro Se Witness my hand and official seal this the _________ day of __________, _________. ____________________________________ Notary Public My Commission expires: ____ / ____ / ________. I CERTIFY that I mailed a true and exact copy of this MOTION to the Attorney for Plaintiff: xxxxNAMEADDY Certified Return Receipt # ________________ By: XXXXsignature
  8. Ok, I'm about to post a few things for review in the order they should go (as I've understood) with arbitration. I can't pm anyone yet because I don't have 10 posts. But here's the gist of all I have to make copies of and send out. Big shout out to Linda7~ Your link and instructions are what I've followed, all the way, to the point of filling out the JAMS papers. Thank yous x a million. Please let me know if I've missed something or if anything is off the mark for revision or addition. All reviews/comments/new eyes-- are entirely kind. (my eyes are loopy-tired bout now) I have received a summons, as stated earlier, with a court date for trial/case reset on July,10, so this is why I’m starting with: NOTICE OF ARBITRATION ELECTION Pursuant to Citibank cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes. As per the agreement, "Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”.) The agreement further states, "At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered." As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration. XXXXXXXXXXXsignature Certified Return Receipt #_________________________ (AND) CC to Attorney as well as the JAMS demands/initiation letter (will have it all filled out by tomorrow morn) sending all to OC/Attorney/JAMS the same day, CRRR. Copy everything to include with MTC: next post.
  9. All of your posts are greatly appreciated. Every tidbit is educating me one way or another. I have to say: This matter has a way of making one feel foolishly stumped and I'm sure that's what captures a large percentage of their profits. I'm just not up for being an easy mark, anymore. lol. I'm already a turnip. Might as well take root~ and become an expensive turnip! I'm spending the holiday weekend pouring over "stuff" to secure a stance by Tues. Tick-tock. I would be totally lost if not for this site and others that bolster awareness. What is so mind-numbing is how all the laws/procedures tangle and flirt and slap me around like some kind of bad romance. Sorry, just venting. But, yes, arbitration is most appealing to me in the now, but that's only because it seems easier on the front-end, and I know the mid-back portion isn't, from what I gather. And IF I can gather something that will secure me a solid chance of getting this over with sooner than later, the better for me. I think. Which means I cannot be wishy-washy. Ok, so no contract agreement. And the statements they supplied are in violation of Credit Card Act of 2009. I don't know if anyone has used this, but I can attest to at least 4 points of violation in print. I had to go thru every page over 6 years. But, since it's hearsay, I don't even know if that matters:confused: Object to the witness/non-witness affidavit. Got that. Law, laws, and more laws. Anything that loves the OC with a binding passion. Thanks for all navigation, links and peeps in the know.
  10. Thank you x2. Loading all the info I can into this brain on TN law, while researching JAMS and anything else that applies. Question: found card agreement dated 8/11. In the arbitration section the following is posed: What about claims filed in small claims court? Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim. My case is in general sessions/small claims, trial date July 10th, so I'm confused as to whether or not I can even file. Please forgive me not knowing something this simple but I'm on overload with info. I'm researching general sessions procedure and JAMS site now for the rules.
  11. Many thanks to each of you. Not sure about homestead but I'll find out. legaleagle~ I'm typing & researching per your suggestions and pouring over everything that applies. howucan2 & fedup1101~will locate card agreement for JAMS. I'm not solid on that route as my choice, yet, but I am seriously considering it. Thanks for all the info on it. also fedup1101~ You are so right about the informal nature of small claims. There's more action going on in tag renewal than in court. The judge that will be hearing the case is a temporary stand-in retiree, due to the original being tossed off the bench. I hope this doesn't present even more of a problem for me. Will update per findings/actions and beg more help I'm sure. Again, thank you for your responses. Any help, is help.
  12. 1. Who is the named plaintiff in the suit? Citibank, N.A. Sears Gold Mastercard 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Buffaloe & Associates, PLC. 3. How much are you being sued for? Near 7k 4. Who is the original creditor? (if not the Plaintiff) Sears 5. How do you know you are being sued? (You were served, right?) Yes 6. How were you served? (Mail, In person, Notice on door) Deputy clerk. 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Nothing 9. What state and county do you live in? TN 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) March, last year. 11. What is the SOL on the debt? To find out: 6 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Warrant served/ summons answered on Jan, 31st, 2012, gave verbal denial of account/ case reset for July 10, 2012. Status still shows as warrant served/case reset. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Answered summons. No questionnaire received. The charges are Default of 7k debt. In court: Only a Them vs Me call to appear. I stood before the Judge and he asked if I wanted to claim the alleged debt: My answer: “No, your honor, I do not.” Judge responded with: “Ok, we need a trial date.” The Buffassc attorney checked his calendar, presented the July date to the Judge. Judge asked me if this date was acceptable. “Yes, and thank you, your honor.” End of hearing. Less than 1 minute, total. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They attached, to the summons, an affidavit signed by an employee of Citibank, claiming to be a “custodian of records with knowledge of said account.” Generic-gen. 2pg letter, found online pdf. form “Affidavit Barbara Gauper.”= Same legal wordage, with different account info. And 1 statement from 8/11 (at that time) attached to the summons. On May 18, 2012 I received a packet from Buffassc attorneys with apprx 6 years’ worth of statements. No contract agreement. I had an original agreement with Sears-circa 1990's. Sears/CBNA Pay status: Closed: 05/26/2010: Charged Off. The statements they sent go from $0 in 2005 to 7kish as of 2012. I have been reading these forums the past 5 days. I denied their account on file in January due to predatory practices and dispute of the amounts. That's what I have, but cannot post all here due to their reps trolling these boards. I've worked myself into the ground trying to proactively rectify this matter over the past two years to no avail. I called Buffassc office to see who the heck they were the day I received the summons and they wanted to talk settlement. I said no and refused to discuss anything without it being in writing. They tried to get ugly. I just don't trust their methodology and I felt the court was the best place to achieve a legal standing, in writing, without lowering myself to their gutter-play. I don't -think- arbitration applies due to a claim already being filed in court. I know there are many posts that have dealt with citibank, but very few have follow-ups or results, and many things do not apply this late in the game or in this state, or so I've gathered, so I just don't know squat from here. Our general sessions court is so lax here that the judge seemed nearly asleep on his bench. Well, in fact, the one I appeared in front of is no longer a judge. Seems he was suspended from the bench for judicial conduct violations and resigned on May 1st. I do own my home, which is why they’re after me and I know they hoped I defaulted in the onset of this farce. My house is 100 years old. No joke. Can’t sell it or refinance it due to recapture, not that I would try to over this. I cannot qualify for a new loan or to transfer the balance to a new account due to the creditor’s fears of #1: Self-emp. #2: Debt ratio. #3: Bad credit reporting from Citi-imagine that. My car is 10 years old and on its last leg. This is the first time I've ever had to go to court over anything in my life. So what am I facing? If I try to settle out of court, Buffassc is notorious for not following thru with the paperwork and reporting. Pay to delete? How does one manage that if this boils down to the courtroom?