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At the end of Fall 2019 I was mailed a collection notice from LVNV Funding. The original creditor was Synchrony Care Credit, the amount $1,200, within SOL I denied debt and requested verification/validation. Within a couple of days, I received a verification packet showing the transfer of debt to LVNV funding, Statements showing a balance for 1 year (no charges/balance only stmts ), and a CareCredit Card agreement. The CareCredit card agreement lacked much information (APR, DATE, NAME, etc.), but it did have an arbitration clause. A few days after receiving the packet, I was sent a letter of intent to sue from LVNV. I contacted the credit bureaus and disputed a Synchrony Care Credit trade line and a new LVNV collection. I knew some information they reported/changed to be factually incorrect. A month later I was served in person. I’m in California. I Scheduled an MTC hearing 45 days out, filed MTC, memorandum of points and authorities (included copy of Care credit agreement they sent), Order, and had plaintiff served. I filed POS as well. This week (29 days before hearing) I was served via USPS a request for documents, request for Admissions, and Special interrogatories. The date to respond timely to them (30 plus 5 days) falls exactly on the date of the MTC hearing. However, the date on the “request for documents” has a date of 2 weeks after the hearing. Here’s my question. Should I respond prior to the hearing? I can prep the docs to send at any time, but am considering having them served via mail the same day of the hearing, depending on the ruling. I could answer “ Objection, defendant has exercised her right to utilize arbitration as the forum to resolve plaintiffs claims, and responding to this discovery request may constitute a waiver of that right (thankyou @Harry Seaward for this from another post). “ VS “objection, defendants’ motion to compel arbitration was granted and the scope of discovery is to be determined through arbitration (not sure if this is phrased correctly) .” In the event my motion is denied, I can serve the first response while filing an appeal with the court the same day of hearing. Either way, I will bring a copy to the hearing in case they show up and it gets brought up. Is my objection how I should respond to every question on all three documents... request for Admissions, Special interrogatories and request for documents? I’ve attached a redacted copy of questions for reference. Ive read through these forums and don’t have a clear picture on what the motion hearing will look like...if the judge will ask me about the case law I used on my MTC or if the other side will show up and what to expect/prep for if they do. Any advice/guidance would help. Thank you for your response. This forum helped so much with my MTC and I appreciate any advice. Question from LVNV.pdf
Soooo. This is my arbitration clause. If I lose in arbitration, am I liable for all of the arbitration fees and everything else as well? Or just the amount they say I owe in suit (around 3200)? Just confused. According to what I could find on the barclaycard website the card agreement does indeed have an arbitration clause. I have included it below. It seems contradictory though. As I understand it they agree that they cannot/ will not be able to charge me for any fee that they accrue during arbitration? So worst case scenario I am required to pay off the full amount of the suppised debt. Default/Collection Costs. Unless otherwise prohibited by law, your Account will be in default and we may demand immediate payment of the entire amount you owe us if: 1) in any month we do not receive your Minimum Payment Due by the Payment Due Date; 2) you make Purchases, initiate Balance Transfers, use a Check, or obtain Cash Advances in excess of your credit line; 3) you fail to comply with this Agreement; 4) there is a filing for your bankruptcy; 5) you die or become incapacitated; or 6) we believe in good faith that the payment or performance of your obligations under this Agreement is impaired for any other reason. As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account) and, in the event we refer your Account after your default to an attorney who is not our regularly salaried employee, you agree to pay the reasonable fees of such attorney. We will not be obligated to honor any attempted use of your Account if a default has occurred or we have determined to terminate your Account or limit your Account privileges (as discussed below). ARBITRATION. At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, arising from or relating in any way to this Agreement or your Account, or their establishment, or any transaction or activity on your Account, including (without limitation) Claims based on contract, tort (including intentional torts), fraud, agency, negligence, statutory or regulatory provisions or any other source of law and (except as otherwise specifically provided in this Agreement) Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration. For purposes of this provision, “you” includes yourself, any authorized user on the Account, and any of your agents, beneficiaries or assigns, or anyone acting on behalf of the foregoing, and “we” or “us” includes our employees, parents, subsidiaries, affiliates, beneficiaries, agents and assigns, and to the extent included in a proceeding in which Barclays is a party, its service providers and marketing partners. Any Claims sought to be made or remedies sought to be obtained as part of any class action, private attorney general or other representative action (hereafter all included in the term “class action”) shall be subject to arbitration, and arbitrated on an individual basis between you and us, not on a class or representative or other collective basis. The arbitrator shall not have any authority to entertain a claim, or to award any relief, on behalf of or against anyone other than a named party to the arbitration proceeding. If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial. Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action. The arbitration shall be administered by the American Arbitration Association, www.adr.org, 950 Warren Avenue, East Providence, Rhode Island, 02914, 1-866-293-4053 (the “Administrator”). The Administrator provides information about arbitration, its arbitration rules and procedures, fee schedule and claims forms at its web site or by mail as set forth above. The Administrator will apply the rules and procedures in effect and applicable to the claim at the time the arbitration is filed. The Claim will be heard before a single arbitrator. The arbitration will not be consolidated with any other arbitration proceedings. The Administrator shall resolve each dispute in accordance with applicable law. If you commence arbitration, you must provide us the notice required by the Administrator’s rules and procedures. The notice may be sent to us at Barclays Bank Delaware, P.O. Box 8801, Wilmington, DE 19899-8801. If we commence arbitration, we will provide you notice at your last known billing address. We agree to honor a request by you to remove the action to a Small Claims Court, provided that we receive the request within thirty days of the notice of commencement of arbitration. Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. No class actions, joinder or consolidation of any Claim with a Claim of any other person or entity shall be allowable in arbitration, without the written consent of both you and us. In the event that there is a dispute about whether limiting arbitration of the parties' dispute to non-class proceedings is enforceable under applicable law, then that question shall be resolved by litigation in a court rather than by the arbitrator; and to the extent it is determined that resolution of a Claim shall proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration. A party can file with the Administrator a written appeal of a single arbitrator’s award within 30 days of award issuance, requesting a new arbitration in front of three neutral arbitrators designated by the Administrator. The panel will reconsider all factual and legal issues, following the same rules of procedure, and will make decisions based on majority vote. Any final arbitration award will be binding on the named parties and enforceable by any court having jurisdiction. Judgment upon any arbitration award may be entered in any court having jurisdiction. We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator. Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration. In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court. If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request. This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement. ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION. ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION.