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Cap One Opposing Motion to Compel Arbitration at the last minute!
snax posted a topic in ArbitrationCapital One is Opposing my Motion to Compel Arbitration 2 days before the hearing for the motion. They are claiming that the Agreement has changed and that I am now bound by the 2010 agreement which has no Arb Clause. I know it is BS because the agreement I signed has a survival clause for the Arb Provision. How do I fight it? Background: I was sued by Cap One for less than $10k in the state CA The account in question was opened 2/1/2008 The 2008 Cap One agreement has an Arbitration Provision that includes JAMS. The Arbitration Provision has a survival Clause that states: "This Arbitration Provision shall survive: (1) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us; ..." Here is what has happened so far: As per the terms of the agreement I elected Arbitration with JAMS. JAMS accepted and served Cap One's Council. I filed my answer including the affirmative defense that I have elected Arbitration. I also filed a Motion to Compel Arbitration as per this extremely helpful thread by Linda7. (@Linda7 Thank you Linda7!) The Plaintiff has now filled an "Opposition to Defendant's Motion to Compel Arbitration" along with a Declaration in support by their own council. They supplied a 2010 agreement sans Arb Provision and are claiming it is the agreement that should be used. I should be able to fight this as it is in violation of their own agreement. But with only 1 day to respond I am defiantly feeling the pressure. Is this something I should address in person at the hearing for the motion or do I need to file a response? Please Help!